BVA9502216 DOCKET NO. 93-02 833 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an effective date earlier than May 1, 1992, for an additional dependency allowance. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Grace Jivens-McRae, Counsel INTRODUCTION The veteran had active service from December 1951 to December 1955 and again from February 1956 to March 1972. This appeal arises from the Winston-Salem, North Carolina, Department of Veterans Affairs (VA) Regional Office's (RO) determination that the veteran was not entitled to be paid an additional allowance for a spouse prior to May 1, 1992. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his accredited representative appealed the instant decision of the RO which denied an earlier effective date for an award of additional compensation on account of a spouse. It is asserted that the RO had notice of the veteran's marital status via VA hospitalization records and through the Air Force retiree account statement necessary to change the veteran's military retirement pay to VA compensation. Additionally, he claims that VA provided no details, telephone numbers, or a veteran's service officer to contact if there were any questions about compensation. He states that he believed that he was receiving the appropriate compensation. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the laws and regulations preclude entitlement to an effective date earlier than May 1992, for an additional dependency allowance. FINDINGS OF FACT 1. The veteran filed an initial application for compensation in June 1978 at which time he listed his marital status as divorced. 2. The veteran was service connected by rating action of September 1978 for bilateral high frequency hearing loss. A noncompensable evaluation was awarded from June 1978. 3. The veteran was service connected by rating action of November 1978 for diabetes mellitus. A noncompensable combined evaluation was awarded from June 1978. 4. The veteran was service connected by rating action of September 1990 for coronary artery disease with history of myocardial infarction and coronary artery bypass grafting. A 60 percent combined evaluation was awarded from March 1990. 5. By rating action of November 1990, the veteran was awarded a total rating based upon individual unemployability, effective from March 1990. 6. The veteran submitted a declaration of marital status to VA in April 1992 with accompanying marriage certificate and divorce decrees reflecting his marriage to his current wife in July 1978.. 7. Additional benefits for the spouse were added effective May 1992. CONCLUSION OF LAW An effective date earlier than May 1992 for an additional dependency allowance is not warranted. 38 U.S.C.A. §§ 5110(f)(n), 5111 (West 1991); 38 C.F.R. § 3.401(b) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran and his accredited representative assert that the veteran should have been awarded an additional dependency allowance for his spouse, effective the beginning of his disability award which was effective March 1990. They maintain that VA had sufficient notice of his marital status as the Form DFAS-DE0-457, Air Force Retiree Account Statement, clearly indicates that he was married and this form was available to VA in order that he receive VA compensation in lieu of his Air Force retirement. The veteran also believes that, because he was hospitalized by VA at two different facilities and those VA employees were aware of his marital status, VA was on notice that he was married. It is also maintained that VA did not advise him that he needed to submit additional evidence for his allowance for his spouse and that they did not assist him in the completion of his claim. Under applicable criteria, an award of additional compensation on account of dependents based on the establishment of a disability rating and the percentage evaluation specified by law for the purpose shall be payable from the effective date of such rating; but only if proof of dependents is received within one year from the date of notification of such rating action. The effective date of the award of any benefit or any increase therein by reason of marriage or the birth or adoption of a child shall be the date of such event if proof of such event is received by the Secretary within one year from the date of the marriage, birth, or adoption. 38 U.S.C.A. § 5110(f)(n). Notwithstanding § 5110 of this title or any other provision of law and except as provided in Subsection (c) of this section, payment of monetary payments based on an award or an increased award of compensation, dependency and indemnity compensation, or pension may not be made to an individual for any period before the first day of the calendar month following the month in which the award or increased award became effective as provided under § 5110 of this title or such other provision of law. 38 U.S.C.A. § 5111. The regulations provide that awards of pension or compensation payable to or for a veteran will be effective as follows: (b) Dependent, additional compensation or pension for. Latest of the following dates: (1) Date of claim. This term means the following, listed in their order of applicability: (i) Date of veteran's marriage, or birth of his or her child, or, adoption of a child, if the evidence of the event is received within one year of the event; otherwise. (ii) Date notice is received of the dependent's existence, if evidence is received within one year of the Department of Veterans Affairs request. (2) Date dependency arises. (3) Effective date of the qualifying disability rating provided evidence of dependency is received within one year of notification of such rating action. (4) Date of commencement of veteran's award. 38 C.F.R. § 3.401(b). In the instant case, the veteran was initially awarded service connection for bilateral high frequency hearing loss and diabetes mellitus. Both disabilities were awarded a noncompensable evaluation effective from June 1978. In March 1990, the veteran reopened his claim and was later awarded service connection for coronary artery disease with history of myocardial infarction and coronary artery bypass grafting. He was provided a 60 percent evaluation effective from March 1990 and notice of the award was provided him in September 1990. In October 1990, the veteran submitted an application for a total rating based upon individual unemployability. He was granted a total disability rating based upon individual unemployability, effective from March 1990 and notification of the award was sent to him in December 1990. In April 1992, the veteran provided VA with a Declaration of Marital Status accompanied by a copy of his marriage certificate and prior divorce decrees for he and his present wife. In April 1992, the veteran received a letter from VA indicating that VA had received his request to add his wife to his award as a dependent. They indicated, however, that additional information concerning his first marriage and his wife's Social Security number were necessary to proceed with the award. In July 1992, the veteran submitted his wife's Social Security number and his divorce decree from his first wife to VA. Later that month, he was informed by the RO that his disability compensation award had been amended to include additional benefits for his spouse. He was notified that, since he had not provided the necessary information within one year of the date of his original award, the additional allowance for his wife could only be paid from the first of the month following the day his claim was received in April 1992. Therefore, the RO determined that his additional dependency allowance was effective from May 1, 1992. Although the veteran claims that he should have been awarded additional compensation for his spouse effective March 27, 1990, the date of his disability award, 38 U.S.C.A. § 5110 indicates that the effective date of an award of additional compensation on account of dependents based on the establishment of a disability rating shall be payable from the effective date of such rating only if proof of the dependents is received within one year from the date of notification of the rating; otherwise it shall not be earlier than the date of receipt of application therefor. The veteran's application for an additional allowance for his spouse and proof of dependency were not received by VA until April 1992, more than one year from the date of notification of his disability rating of September 1990. Even if the Board were to accept the date of notification of his total rating for individual unemployability as the date of notification of such rating, that date, December 1990, was still more than one year prior to the date the veteran provided proof of his marital status. After the veteran submitted his Declaration of Marital Status in April 1992, he was required to submit additional information in connection with his claim for an additional dependency allowance. However, he was provided an additional dependency allowance payable from the first of the month following the date of receipt of his claim to add his spouse, which was April 1992. Therefore, the adjustment of benefits to include the veteran's wife as a dependent for compensation purposes effective May 1, 1992, was proper. Although the veteran asserts that VA was aware of his marital status because of his hospitalization on at least two occasions at different VA hospitals and the requirement that he submit his Air Force retiree pay statement (which includes his marital status) in order to receive VA compensation in lieu of military retirement, regulation provides that a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. § 3.151(a). The veteran's initial claim for compensation in June 1978 indicated, in pertinent part, that he was divorced. Additionally, a disability compensation award attachment was enclosed with the veteran's award letter of December 1990. That attachment, VA Form 21-8764, indicates, in pertinent part, that if a veteran has a 30 percent or more service-connected condition, he may be entitled to additional compensation for a spouse, dependent parents, or unmarried children under 18 if the child has become incapable of self- support because of mental or physical defect. The letter further stated that, if the veteran had a disability rating of 30 percent or more, he must promptly advise VA of any change in the status of his dependents. Moreover, at the date the veteran was notified of his award of compensation, he had previously submitted an appointment of Veterans Service Organization, appointing The American Legion as his representative. Therefore, the veteran had not only available to him notification from VA of his potential eligibility for additional compensation for dependents, he was represented by a service organization recognized by VA from which he could contact for further information. It is unfortunate that the veteran was unaware of his potential eligibility for additional compensation for dependents prior to 1992; however, statutory provisions set forth the date for retroactivity for awards of such benefits. Although Akles v. Derwinski, 1 Vet.App. 118 (1991) places the burden on the Secretary to distribute full information to eligible veterans regarding all benefits and services to which they may be entitled under laws administered by VA, the failure of VA to provide such information or the veteran's failure to avail himself of such information cannot override statutory provisions set forth as to the effective date of awards. It is recognized that the veteran has provided a copy of VA Form 10-10(Application for Medical Benefits) dated in February 1990 wherein he lists his marital status as married and he identifies his wife as the person to be notified in case of an emergency. This was, however, dated in February 1990 prior to the effective date of the qualifying rating. Moreover, it was not filed with the RO, but was apparently filed at a VA Medical Center. There was nothing in this application which could be construed as an intent to file a claim based on dependency. If a communication is to be accepted as an informal claim, it must identify the benefits sought. 38 C.F.R.§ 3.155. In a case such as this one, when the law and not the evidence is dispositive, the claim must be denied because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet.App. 426 (1994). Since the veteran did not meet the time limits provided in 38 U.S.C.A. §§ 5110 and 5111, there is no legal basis to grant entitlement to an effective date earlier than May 1, 1992, for an additional dependency allowance for a spouse. ORDER The appeal as to entitlement to an effective date earlier than May 1, 1992, for an additional dependency allowance for a spouse is denied. C. W. SYMANSKI Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.