Citation Nr: 0629475 Decision Date: 09/18/06 Archive Date: 09/26/06 DOCKET NO. 04-41 141 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to an effective date prior to June 1, 2003, for additional compensation benefits for the veteran's spouse. REPRESENTATION Appellant represented by: Arkansas Department of Veterans Affairs ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The veteran served on active duty from April 1998 to April 2001. This matter comes to the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. FINDINGS OF FACT 1. In November 2000, the RO granted service connection for several disabilities, resulting in a combined disability rating of 40%. 2. In May 2001, the veteran was informed of the RO's November 2000 determination, and he was instructed that he was being paid as a single veteran with no dependents. 3. In May 2001, the veteran was informed that the information he sent about his dependents was incomplete, and he was instructed to return a completed VA Form 21-686c; he was also informed that if the evidence was not received within one year from May 2001, he could only be paid from the date the evidence is received. 4. In May 2003, the veteran requested that his spouse be recognized as a dependent, and he submitted a VA Form 21- 686c. 5. In July 2003, the RO contacted the veteran by telephone and secured information regarding his dependent wife. 6. In October 2003, the veteran's compensation was amended effective June 1, 2003, to include additional benefits for his spouse. CONCLUSION OF LAW An effective date prior to June 1, 2003 for additional compensation benefits because of the veteran's dependent spouse is not warranted. 38 U.S.C. § 5107 (West 2002); 38 C.F.R. §§ 3.31, 3.109, 3.401 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION By rating action in November 2000, the veteran was granted service connection for several disabilities, and his combined disability rating was 40 percent effective from April 2001. By official letter in May 2001, with enclosures including a VA Form 686c, the veteran was informed of his service- connection grant, and his rights and responsibilities. The information contained in this notification informed him that in order for additional benefits to be payable from the earliest possible date, he must complete VA Form 21-686c, declaration of marital status, in order to receive additional compensation benefits for his spouse since information submitted at the time of his claim was insufficient. While the veteran sent in a VA Form 21-686c in May 2003 and reported he was once again sending in a VA Form 21-686c, none is of record prior to that time, and he subsequently stated in his October 2004 substantive appeal that he never received the May 2001 letter and enclosures notifying him of his award. A copy of the May 2001 letter is in the file and it shows that among the enclosures was a VA form 21-686c. There is nothing in the record to show that the mailed letter from the RO was not received by the veteran. The United States Court of Veterans Appeals (Court) has held that in the absence of clear evidence to the contrary, the law presumes the regularity of the government's administrative processes. Jones v. West, 12 Vet. App. 98, 100 (1998); Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992). The Court has also specifically held that a statement by a claimant, standing alone, is not sufficient to rebut the presumption of regularity in VA operations. Id. 38 C.F.R. § 3.401 provides that additional compensation may be paid for a dependent on the effective date of the qualifying disability rating provided evidence of dependency is received within one year of notification of such rating or the date notice is received of the dependent's existence, if evidence is received within one year of the VA request, whichever is later. 38 C.F.R. 3.109 provides that time limits within which claimants are required to act to perfect a claim may be extended for good cause shown. Where an extension is requested after expiration of a time limit, 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. Inasmuch as the Board has determined that the veteran was properly informed in May 2001 of the qualifying award and the necessary evidence to add his spouse, the Board finds no persuasive reason why he could not have filed Form 21-686c within one year of the May 2001 notification. The veteran claims that he had given paperwork to a VA representative in March 2001, but that the VA office in Muskogee told him that it had never received these records. The veteran's file contains several documents received from the VA Pre-Discharge Office at Fort Sill, Oklahoma. The records at issue are not included in the paperwork. As noted above, in the absence of clear evidence to the contrary, the law presumes the regularity of the government's administrative processes. A VA form 21-8947 Compensation and Pension Award form, dated May 22, 2001, contains a notation indicating that a discrepancy was noted on the form 526 and the case should be developed for dep[endent]. The follow-up letter discussed above was sent on the same day to address this discrepancy. This evidence shows that VA recognized there may be a dependent and sent the veteran a letter requesting additional information. The veteran's statements do not rise to the level of clear evidence to the contrary as VA noted the problem and attempted to rectify it by asking for additional information. The veteran has also argued that he had reported the information regarding his dependent spouse at the time he filed his original claim in October 2000, and thus, the information was already of record. The Board finds that the RO's request in May 2001 that the veteran supply information regarding his wife's previous marriages on an enclosed VA Form 21-686c was reasonable under the circumstances of this case. His original application form for compensation was not correctly filled out since the status of the veteran's dependent spouse was not correctly indicated. The veteran placed his wife's name in the section requiring the name of her prior spouse(s). The request for a properly completed form with the specifically requested information was perfectly reasonable under those circumstances, and the necessary information was not before the RO at that time. Thus, the veteran's arguments that his information was properly documented in the past in his claims file is unavailing. The veteran's failure to respond to the RO's request meant that the RO was not informed of the actual status of his dependents until 2003. In that regard, he then submitted a VA Form 21-686c in May 2003, which did not list any prior marriages for his spouse. He also contacted the RO in July 2003, and was called by the RO which received further clarifying information. Thereafter, the dependent spouse was properly added. The Board believes that the evidence shows as a whole that the veteran was clearly informed that he must file Form 21- 686c within one year of the date of the May 2001 notification, and he was informed of what information was necessary. He has not shown good cause as to why he did not. His May 2003 claim was beyond the one-year period and the effective date of June 1, 2003, the first day of the month following his claim, was properly assigned. Accordingly, there is no basis for an allowance of the retroactive benefit sought on appeal. The evidence is not so evenly balanced that there is doubt as to any material issue. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.31, 3.109, 3.401. Duties to Notify and Assist VA has certain duties to notify and to assist claimants concerning the information and evidence needed to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5103 and 5103A (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159 and 3.326(a). VA must notify the claimant (and his or her representative, if any) of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide, and (4) VA must ask the claimant to provide VA with any evidence in his or her possession that pertains to the claim. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case the veteran submitted a VA Form 21-686c in May 2003 and requested that the dependent status be corrected to include his wife. A June 2004 letter was mailed after the October 2003 determination regarding the effective date of the additional benefits for the veteran's spouse. The letter described the evidence necessary, identified what evidence VA was collecting, and informed the veteran that it was his responsibility to make sure VA receives all requested records. While the notice was sent after the determination, the requisite notice was ultimately provided to the appellant before the final transfer and certification of the case to the Board, and he had ample time in which to respond to the notice letter. Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005), rev'd on other grounds, N. 05-7157 (Fed. Cir. Apr. 5, 2006). The appellant has had a "meaningful opportunity to participate effectively" in the processing of his claim. Mayfield, Id. The Board finds that the present adjudication of the issue on appeal will not result in any prejudice to the appellant. VA also has a duty to assist a claimant in obtaining evidence to substantiate his or her claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The veteran was properly informed by the RO of the evidence necessary to support his claim. He has not identified any records which could be pertinent to his claim. There is no indication that there are any outstanding records that are pertinent to this claim. For these reasons, the Board concludes that VA has fulfilled the duty to assist the veteran in this case. ORDER An effective date prior to June 1, 2003 for additional compensation benefits based on a dependent spouse is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs