Citation Nr: 0819294 Decision Date: 06/11/08 Archive Date: 06/18/08 DOCKET NO. 06-18 902 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to an effective date earlier than December 8, 2005 for an additional dependence allowance for a spouse. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD John Z. Jones, Counsel INTRODUCTION The veteran served on active duty from December 1965 to November 1968. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a decision of the Providence, Rhode Island, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. In a March 2004 rating decision, the RO granted service connection for post traumatic stress disorder (PTSD), evaluated as 30 percent disabling effective March 2001. 2. In March 2004, the RO advised the veteran of the grant of service connection and informed him that if he had dependents, he needed to complete a VA Form 21-686c for Declaration of Status of Dependents, and return the completed form within one year, to receive additional compensation for them. 3. The veteran submitted a completed VA Form 686c on December 8, 2005. CONCLUSION OF LAW The criteria for an effective date earlier than December 8, 2005 for an additional dependence allowance for a spouse have not been met. 38 U.S.C.A. §§ 1115, 5110(f) (West 2002); 38 C.F.R. §§ 3.31, 3.204, 3.401 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Pertinent Law and Regulations Except as otherwise provided, the effective date of an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. An award of additional compensation for dependents based on the establishment of a rating in the percentage specified by law for that 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 such rating. 38 U.S.C.A. § 5110(f). Veterans having a 30 percent or more service-connected condition may be entitled to additional compensation for a spouse. 38 U.S.C.A. § 1115; 38 C.F.R. § 3.4(b) (2). The effective date of the award of any benefit or increase by reason of marriage shall be the date of that event if proof is received by VA within a year from the date of marriage. 38 U.S.C.A. § 5110(n). Regarding additional compensation for dependents, the effective date will be the latest of the following dates: (1) date of claim; (2) date the dependency arises; (3) effective date of the qualifying disability rating provided evidence of dependency is received within a year of notification of such rating action; or (4) date of commencement of the veteran's award. 38 C.F.R. § 3.401(b). The "date of claim" for additional compensation for dependents is the date of the veteran's marriage, if evidence of the event is received within a year of the event; otherwise, the date notice is received of the dependent's existence, if evidence is received within a year of notification of such rating action. 38 C.F.R. § 3.401(b) (1). The earliest that the additional award of compensation for a dependent spouse can occur is the first day of the month following the effective date. 38 C.F.R. § 3.31. VA will accept the written statement of a claimant as proof of marriage for purposes of determining entitlement to benefits as long as the statement contains the month, year, and place of the event, the full name and relationship of the other person to the claimant, and the spouse's social security number. 38 C.F.R. § 3.204(a) (1). If an application is incomplete, the claimant will be notified of the evidence necessary to complete the application. If the evidence is not received within one year from the date of such notification, compensation may not be paid by reason of that application. This applies to applications for increased benefits by reason of existence of a dependent. See 38 C.F.R. § 3.109. Where evidence requested in connection with an original claim, a claim for increase or to reopen or for the purpose of determining continued entitlement is not furnished within one year after the date of request, the claim will be considered abandoned. After the expiration of one year, further action will not be taken unless a new claim is received. Should the right to benefits be finally established, pension, compensation, dependency and indemnity compensation, or monetary allowance under the provisions of 38 U.S.C.A. § 1805 based on such evidence shall commence not earlier than the date of filing of the new claim. See 38 C.F.R. § 3.158. Analysis The veteran contends that he is entitled to an earlier effective date for the addition of his spouse as a dependent. His spouse maintains that she sent in the required information in March 2004. The basic facts are not in dispute and may be briefly summarized. The record shows that in November 1968 the veteran filed a claim for service connection (VA Form 21-526) wherein he reported that he had never been married. In August 1970, VA received a marriage certificate indicating that the veteran and his spouse were married in April 1969. In March 2001, the veteran sought service connection for PTSD. In March 2004, the RO granted service connection for PTSD and assigned a 30 percent rating effective March 2001. In correspondence dated March 13, 2004, the RO advised the veteran that he was being paid as a single veteran with no dependents. He was informed as follows: The information you sent us about your dependents wasn't complete. Before we can pay additional benefits for your dependent(s), send us the following: * VA Form 21-686c, "Declaration Of Status Of Dependents." Please fill out every blank on the form which applies to you. The letter instructed the veteran to send the information to the RO. The RO informed the veteran that he could be paid from the date his claim was received if the information was received within one year from the date of the letter. He was also advised that if the information was not received within one year he could only be paid from the date the information was received. A VA Form 21-686c was enclosed On December 8, 2005, the RO received a completed VA Form 686c wherein the veteran provided his spouse's social security number. Considering the claim in light of the record and the governing legal authority, the Board finds that the currently assigned effective date of December 8, 2005, is the earliest effective date assignable for additional compensation benefits for the veteran's spouse as a matter of law. In this case, to warrant the assignment of an earlier effective date for the addition of the veteran's spouse as a dependent, the RO would have had to receive the additionally required information (her social security number), within one year of the March 2004 letter. The veteran's failure to respond to the RO's letter meant the RO did not have all the required information regarding his dependent until December 2005, when he filed a VA Form 21-686c which included his spouse's social security number. Although the RO had information indicating that the veteran was married (his marriage certificate), he had not provided his spouse's social security and could not be paid for her until it was submitted. Because the dependency information sought by the RO to support his claim was not submitted within a year of the RO's March 2004 notification letter, that claim is considered abandoned (see 38 C.F.R. § 3.158), and, hence, closed. In July 2006, the veteran's spouse submitted an affidavit stating that she reviewed the March 2004 VA notification letter and that she completed the enclosed VA Form 686c and mailed it to VA that month. The veteran's attorney argues that the "presumption of regularity" should apply in this case. To the extent that the veteran and his spouse suggest that VA lost or misplaced the form in 2004, they have offered no supporting clear evidence that this is the case. There is a presumption of regularity under which it is presumed that government officials "have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926); Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (VA need only mail notice to the last address of record for the presumption to attach). This presumption of regularity in the administrative process may be rebutted by "clear evidence to the contrary." Schoolman v. West, 12 Vet. App. 307, 310 (1999). If the form were mailed in March 2004, evidence of dependency would presumably have been received within one year of notification of the rating action in which the qualifying disability rating was granted, the March 2004 rating decision. However, there is no VA Form 21-686c contained in the claims file other than the one marked as received on December 8, 2005. Without evidence to the contrary, and there is none of record, under the presumption of regularity of the official acts of public officers, the Board must conclude that any mail sent to the RO would have been proximately received and associated with the claims file. See Marciniak v. Brown, 10 Vet. App. 198, 200 (1998). The Board finds the veteran's spouse's mere assertion that she sent the required information in 2004 is not sufficient to rebut the presumption of regularity in the administrative process. Although the evidence shows that VA had notice of the veteran's marriage in 1970, the Board finds that the RO's request for a completed VA Form 21-686c was reasonable under the circumstances of this case, as his spouse's social security number was not of record. See 38 C.F.R. §§ 3.204, 3.216. The veteran's failure to respond to the RO's request meant that the RO was not fully informed of his spouse's social security number until the information was provided in December 2005. The laws are clear that to establish entitlement to additional benefits for a dependent spouse, the mere fact that the veteran has submitted evidence showing that he or she is married is not sufficient to award such benefits. He was also required to provide his spouse's social security number. The RO was not obligated to begin paying additional benefits for a dependent spouse until this information was received. The veteran was required to follow through with specific information after VA compensation benefits were awarded to him, as required by law. He failed to do so. As more than a year had elapsed since the veteran's 30 percent disability rating was assigned, and the receipt of the required information, the RO was entitled to make the increase in compensation for the veteran's dependent spouse effective from the first day of the month following the month in which the required information on his dependent spouse was received. Accordingly, for the reasons and bases discussed above, the veteran's appeal must be denied on the basis of lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), now codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002) and implementing regulations (codified at 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a)) provide for, among other things, notice and assistance to claimants under certain circumstances. During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), providing further guidance on VCAA notice requirements. However, Congress, in enacting the statute, noted the importance of balancing the duty to assist with "the futility of requiring VA to develop claims where there is no reasonable possibility that the assistance would substantiate the claim." Mason v. Principi, 16 Vet. App. 129, 132 (2002) (quoting 146 CONG. REC. S9212 (daily ed. Sept. 25, 2000) (statement of Sen. Rockefeller)). When the law and not the evidence is dispositive of the claim, VCAA is not applicable. See Mason, 16 Vet. App. at 132 (VCAA not applicable to a claim for nonservice-connected pension when the claimant did not serve on active duty during a period of war); Smith (Claudus) v. Gober, 14 Vet. App. 227 (2000) (VCAA did not affect a federal statute that prohibited payment of interest on past due benefits), aff'd, 28 F.3d 1384 (Fed. Cir. 2002). This case involves the application of law to certain facts such as the date when information, which was needed to award additional compensation for the veteran's spouse, was received by the RO. Those facts are already established by the evidence now of record. Collecting additional evidence would not be productive or helpful to the veteran's appeal. Thus, because the law as mandated by statute, and not further development of evidence, is dispositive of this appeal, the VCAA is not applicable. ORDER Entitlement to an effective date earlier than December 8, 2005 for an additional dependence allowance for a spouse is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs