Still Being Paid W/o Dependents

[luvHIM]

I sent in the form 21-686c with initial award and now being awarded rest of appeal without dependents...still.

How long does it take for VA to process this form adding dependents?

Do I get the retro for them, also?

Got SOC...not award letter, yet. But on Friday I did get call from accounting about "substantially large" retro check and they were needing my direct deposit info. I already sent that into to them when I filed.

My main concerns now are about getting dependents added.

What other benefits come along with a 100% P&T benefit award?

Thanks, in advance, for your responses!

[sharon]

TITLE 38 - PENSIONS, BONUSES, AND VETERANS' RELIEF

CHAPTER I - DEPARTMENT OF VETERANS AFFAIRS

PART 3 - ADJUDICATION

subpart a - PENSION, COMPENSATION, AND DEPENDENCY AND INDEMNITY COMPENSATION

3.109 - Time limit.

(a) Notice of time limit for filing evidence. (1) If a claimant's application is incomplete, the claimant will be notified of the evidence necessary to complete the application. If the evidence is not received within 1 year from the date of such notification, pension, compensation, or dependency and indemnity compensation may not be paid by reason of that application (38 U.S.C. 5103(a)). Information concerning the whereabouts of a person who has filed claim is not considered evidence.

(2) The provisions of this paragraph are applicable to original applications, formal or informal, and to applications for increased benefits by reason of increased disability, age, or the existence of a dependent and to applications for reopening or resumption of payments.

If substantiating evidence is required with respect to the veracity of a witness or the authenticity of documentary evidence timely filed, there will be allowed for the submission of such evidence 1 year from the date of the request therefor. However, any evidence to enlarge the proofs and evidence originally submitted is not so included.

(;) Extension of time limit. Time limits within which claimants or beneficiaries are required to act to perfect a claim or challenge an adverse VA decision may be extended for good cause shown. Where an extension is requested after expiration of a time limit, the action required of the claimant or beneficiary must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was. Denials of time limit extensions are separately appealable issues.

[carlie]

http://www.va.gov/vetapp09/files1/0909682.txt

I. Analysis

The law provides that a veteran who is entitled to

compensation, and whose disability is rated not less than 30

percent, shall be entitled to additional compensation for

dependents. 38 U.S.C.A. § 1115.

VA's regulations provide that the effective date for payment

of additional compensation for dependents shall be the 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 1 year of the event;

otherwise

(ii) Date notice is received of the

dependent's existence, if evidence is

received within 1 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 1 year of notification of such rating

action.

(4) Date of commencement of veteran's award.

38 C.F.R. § 3.401(b).

The record shows that the Veteran first applied for VA

compensation benefits in 1980; the claim form indicates that

he was not married at that time.

A rating decision in January 1982 initially established service connection for a

disability, and assigned a 0 percent rating. In conjunction

with a claim for an increased rating, in August 1982, the

Veteran submitted a signed VA Form 21-686c and a copy of his

marriage certificate, noting his recent marriage. However,

because his disability rating remained 0 percent, additional

benefits for a dependent could not be paid.

A rating decision in May 2004 granted service connection for

three additional disabilities and assigned ratings that, for

the first time, increased the Veteran's combined rating to

30 percent beginning November 1, 2000. The May 2004 notice

letter advised him that

Veterans who are in receipt of

compensation of 30% or more may be

entitled to an additional allowance for

their dependents. Before we can

determine entitlement to additional

benefits for dependents, we need

additional information. Complete, sign,

and return the enclosed VA Form 21-686c,

Declaration of Status of Dependents... We

must receive the form within one year

from the date of this letter to protect

entitlement to benefits from the earliest

possible date. Otherwise, benefits can

only be paid from the date we receive the

evidence.

Another rating decision was issued in December 2004 that

granted a total disability rating based on individual

unemployability. The notice letter for that decision advised

that, "We are paying benefits for a single veteran with no

dependents." The Veteran was also advised that, "Any

dependents or future dependents may be eligible for

Dependents' Educational Assistance." The form for applying

for such benefits was enclosed.

On January 23, 2007, a completed and signed VA Form 21-686c

was received, along with a copy of the Veteran's marriage

certificate, noting his marriage in July 1982. The form

noted that the Veteran's son was 23 years old and was

receiving VA educational assistance benefits under Chapter

35, U.S.C. By a letter dated in February 2007, the RO

notified the Veteran that he was being paid additional

benefits for his spouse, beginning February 1, 2007, but the

law prohibited payment of additional benefits for his son

while he was receiving Chapter 35 benefits.

The Veteran filed a notice of disagreement in March 2007,

contending that VA was aware that he was married in 1982 and

that he had a son in 1983. He also noted that he had

previously applied for "Agent Orange," had purchased a home

through VA in 1985, and had VA insurance.

Applying the evidence in this case to the several criteria

for determining the effective date for an increased award for

a dependent spouse, the Board finds that the dependency arose

on the date of the Veteran's marriage in July 1982. The

effective date of the qualifying disability rating was

November 1, 2000. The Board recognizes that a VA Form 21-

686c was received from the Veteran in August 1982, noting his

recent marriage; however, he was not eligible for additional

benefits for dependents at that time because of the 0 percent

rating.

When the Veteran's disability rating was increased in May

2004, he was notified that information was needed to

determine his entitlement to additional benefits for

dependents, and he failed to return the necessary form within

one year. While he may have notified VA many years

previously that he had married and that he had a son, VA

required current information in that regard, because the

status of a veteran's dependents frequently changes,

particularly after the passage of so many years.

Further, even after the May 2004 notice letter, the Veteran

was again notified in December 2004 that he was being paid

benefits for a single veteran with no dependents. So he was

clearly aware of the need for current information.

Nevertheless, a completed VA Form 21-686c was not received

until January 23, 2007, well beyond the one-year period

following the May 2004 notice letter that requested that

evidence.

The Board has considered the Veteran's arguments and his

contention that VA was previously aware of his wife's

dependency status. However, it is the Veteran's

responsibility to provide information requested by VA. See

38 U.S.C.A. § 5107(a) (a claimant has the responsibility to

present and support a claim for benefits under laws

administered by the Secretary).

Accordingly, because the required evidence of the Veteran's

wife's dependency status was not received by VA until January

23, 2007, that date is the earliest date that can be assigned

for the additional compensation based on the dependency.

Payment for the additional benefits could begin no earlier

than February 1, 2007. See 38 U.S.C.A. § 5111(a); 38 C.F.R.

§ 3.31 (payment of monetary benefits based on an increased

award of compensation may not be made for any period prior to

the first day of the calendar month following the month in

which the award became effective). Here, the RO has already

assigned February 1, 2007, as the effective date for payment

of the increased compensation. Therefore, no earlier date

may be assigned and the appeal must be denied.

In reaching this conclusion, the Board has considered the

applicability of the benefit-of-the-doubt doctrine. However,

as the preponderance of the evidence is against the

appellant's claim, that doctrine is not applicable in the

current appeal. 38 U.S.C.A. 5107(b); Gilbert v. Derwinski,

1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518, 519

(1996).