Citation Nr: 0001102 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 98-02 976A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an effective date prior to November 1, 1997 for the addition of a dependent for the purposes of disability compensation benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. M. Panarella, Associate Counsel INTRODUCTION The veteran served on active duty from July 1956 to August 1963 and from June 1968 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the November 1997 rating decision of the Department of Veterans Affairs (VA) Regional office in Roanoke, Virginia (RO). The Board observes that the veteran, in his VA Form 9 dated March 1998, requested a waiver of recovery of overpayment in the calculated amount of $1,035, which resulted from the retroactive reduction of his disability compensation benefits. By letters dated March and April 1998, the RO appears to have acknowledged this claim. Therefore, the Board refers this issue to the RO for all appropriate development. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran was awarded disability compensation benefits at the rate of 30 percent effective from October 1982. 3. The veteran secured a divorce in February 1995 and remarried in April 1995. 4. The veteran informed the RO of his remarriage in October 1997. CONCLUSION OF LAW The requirements for an effective date prior to November 1, 1997 for the addition of a dependent for the purposes of disability compensation benefits have not been met. 38 C.F.R. §§ 3.401(b)(1), 3.501(d)(2) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). That is, the Board finds that the veteran has presented a claim which is not implausible when his contentions and the evidence are viewed in the light most favorable to that claim. The Board is also satisfied that all relevant facts have been properly and sufficiently developed. The record shows that, in February 1983, the RO issued a rating decision which awarded the veteran a 30 percent disability evaluation for a right forearm injury effective from October 1982. At the time of this initial rating decision, additional benefits for the veteran's spouse and child were included in the award. In October 1989, the veteran submitted a Status of Dependents Questionnaire in which he stated that he continued to be married to Hiroko Zamami, whom he had married in October 1969. In July 1991, the veteran submitted the Social Security numbers of his dependents and continued to identify Hiroko Zamami as his wife. However, in October 1997, the veteran identified his spouse as Janet Marie Stone and provided the date of marriage as April 13, 1995. By letter dated October 1997, the RO proposed a reduction of the veteran's compensation benefits due to the veteran's apparent divorce from Hiroko Zamami. That same month, the veteran submitted another Declaration of Status of Dependents in which he stated that he had divorced Hiroko Zamami on February 28, 1995. In November 1997, the RO reduced the veteran's disability award effective from March 1, 1995 and awarded an additional allowance for Janet Marie Stone effective from November 1, 1997. An overpayment in the amount of $1,035 resulted. Thereafter, the veteran expressed disagreement with the reduction of his disability compensation benefits due to his divorce and remarriage. In particular, he stated that he did not believe his benefits should not have been reduced from March 1, 1995 through November 1, 1997 because he was divorced for less than a two month period before he remarried. Under the applicable regulations, if a marriage ends in divorce or annulment on or after October 1, 1982, the additional compensation benefits will be discontinued on the last day of the month in which the divorce or annulment occurred. 38 C.F.R. § 3.501(d)(2) (1999). An award of additional compensation payable to a veteran on account of marriage will be the date of the veteran's marriage, if evidence is received within one year of the date of the event. Otherwise, the effective date for the additional compensation based on marriage will be the date that notice of the marriage was received if the evidence is received within one year of the VA request. 38 C.F.R. § 3.401(b)(1) (1999). In the present case, the veteran divorced Hiroko Zamami on February 28, 1995. Therefore, the RO correctly reduced his disability compensation benefits effective from March 1, 1995 pursuant to 38 C.F.R. § 3.501(d)(2) (1999). Subsequently, the veteran married Janet Marie Stone on April 13, 1995. However, he did not inform the RO of this marriage until October 1997. Had he informed the RO of his remarriage within one year of the date of the marriage, the veteran would have been entitled to additional disability compensation benefits effective the date of marriage. As the veteran did not provide notice within a year of his remarriage, the effective date for additional disability compensation benefits is the date which the RO actually received notice of the marriage. 38 C.F.R. § 3.401(b)(1) (1999). Therefore, the RO correctly awarded an additional allowance for the veteran's spouse effective from November 1, 1997. Accordingly, the Board concludes that the veteran is not entitled to an earlier effective date for the addition of a dependent for the purposes of disability compensation benefits. ORDER An effective date prior to November 1, 1997 for the addition of a dependent for the purposes of disability compensation benefits is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals