Citation Nr: 1127045 Decision Date: 07/20/11 Archive Date: 07/29/11 DOCKET NO. 10-12 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to an effective earlier than June 17, 2009, for additional compensation based on dependency. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The appellant served on active duty from June 1977 to December 1990. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a decision of the Reno, Nevada, Department of Veterans Affairs (VA) Regional Office (RO). In August 2010, the appellant testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing. Prior thereto, in September 2009, he had testified before a Decision Review Officer at the RO. The transcripts are associated with the claims folder. FINDINGS OF FACT 1. At the time of an August 2007 rating decision, the AOJ had notice of marriage to PA, a marriage certificate and confirmation dated in 2004 and 2005 that the appellant remained married to PA. 2. The claim for additional compensation for dependents was part and parcel of the claim for increase and all information needed for the award was of record. CONCLUSION OF LAW The effective date for the award of additional compensation for a dependent is October 13, 2005. 38 U.S.C.A. §§ 1115, 5110(f) (West 2002); 38 C.F.R. § 3.401(b) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). As the determination in this case is favorable to the appellant, and a full grant of the benefit sought, any error in VCAA notice or the duty to assist is harmless error, without prejudice to the appellant. Also, neither the appellant nor his representative has asserted any harm or prejudice to the appellant. See Shinseki v. Sanders, 129 U.S. 1696 (2009)( the appellant bears the burden of showing harm when not notified whether the necessary information or evidence is expected to be obtained by VA or provided by the appellant). It is noted that in Bryant v. Shinseki, 23 Vet. App. 488, the Court recently held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the Veterans Law Judge noted that basis of the prior determination, asked clarify questions, and summarized the appellant's arguments to ensure that his position was fully understood. Neither the appellant nor his representative have asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim and the appellant, through his testimony, demonstrated that he had actual knowledge of the information necessary to substantiate his claim for the benefit sought. As such, the Board finds that the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2). II. Effective Dates The appellant seeks an effective date earlier than June 17, 2009, for the award of additional compensation for a dependent spouse. It is noted that veterans having a 30 percent or more service-connected disability may be entitled to additional compensation for a spouse, dependent parents, or unmarried children under 18 (or under 23 if attending an approved school) or when prior to age 18 the child has become permanently incapable of self- support because of mental or physical defect. 38 U.S.C.A. § 1115; 38 C.F.R. § 3.4(b)(2). 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); 38 C.F.R. § 3.401(b)(1). The earliest that the additional award of compensation for a dependent(s) can occur is the first day of the month following the effective date. 38 U.S.C.A. § 5111(a); 38 C.F.R. § 3.31. The Board notes that, "[t]here is a presumption of regularity that attaches to actions of public officials." Woods v. Gober, 14 Vet. App. 214, 220 (2000) (citing INS v. Miranda, 459 U.S. 14, 18 (1982); United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926). The Court has applied the presumption of regularity to "all manner of VA processes and procedures." Woods, 14 Vet. App. at 220. See Schoolman v. West, 12 Vet. App. 307, 310 (1999) (applying presumption as to whether RO sent to claimant the application form for dependency and indemnity compensation). The following facts are not in dispute. Historically, on July 3, 1991, VA received an original compensation claim, VA Form 21-526. Therein, the appellant reported that he was married. The claims file contains a marriage license for the appellant and PA, his spouse. There is no date stamp showing VA receipt of this document, but it is associated with a VA letter dated July 11, 1991. In December 1991, the appellant was awarded a 10 percent disability evaluation, effective from January 1, 1991. The RO notified the appellant of this award in a letter dated December 1991. In June 2007, the RO received copies of DD forms 2569, dated in 2004 and 2005. These documents established that the appellant was married and that the spouse was PA. In an August 2007 letter to the appellant, the RO notified him of an increased compensation award. This letter identified the payment amount and start date, and showed the appellant the reason for changes in the amount paid since September 2007 (ie. Military retirement pay adjustment, cost of living adjustment, increased award). In this letter, under the heading "What Do We Need From You to Complete Your Claim For Dependents?", the RO reported that VA did not have current information about dependents and indicated that VA Form 21-686c (Declaration of Status of Dependents) must be entirely filled out before additional benefits for dependent(s) could be paid. He was instructed to send the RO directly this form. This letter further included an attachment that explains how VA determines effective dates for disabilities. The effective date of the 50 percent combined rating was October 13, 2005, with a payment start date of November 1, 2005. Lastly, the RO notified the appellant that he had one year from the date of the letter to submit to VA the requested information, otherwise additional payment would be from the date VA received the evidence. On June 17, 2009, the RO received VA Form 21-686c. This form was signed by the appellant and dated August 21, 2007. In a letter dated June 17, 2009 to the appellant, the RO notified him that his claim for additional benefits based on a dependent was received on June 17, 2009. The effected date (payment change date) of this change of payment was July 1, 2009. In July 2009, the appellant filed a timely notice of disagreement with the June 2009 RO action. He perfected his appeal in March 2010. The appellant testified before a Decision Review Officer at the RO in September 2009. He argued that an effective date of November 1, 2005, was warranted for benefits based on dependency because (1) VA had on file VA Form 21-526 dated June 27, 1991, which showed his spouse, evidencing a dependent; and (2) he was not provided with VA Form 119, which could have clarified for VA whether he was still married. The appellant reported that he had mailed VA Form 21-686 to his representative previously. In August 2010, the appellant testified before the undersigned VLJ. He argued that an effective date from November 1,2005, was warranted because (1) in 1991, he submitted information that he was married and this evidence should stand pat; and (2) he submitted VA Form 21-686c to his representative and he should not be held accountable for their failure to submit the form to VA. Analysis Having carefully reviewed the evidence of record to include the appellant's sworn testimony, the Board finds that the evidence supports the claim. The Board accepts the appellant's argument that the record contained the required information showing his marital status and that this should have been sufficient to award additional benefits based on a dependent. The August 2007 notification letter specifically informed him that "current information about your dependents" was required. However, prior to the rating decision, the AOJ had the original claim for benefits and a marriage license establishing that the appellant was married to PA. Although not a basis to award benefits many years later, the appellant submitted documents in support for the claim for increase. In June 2007, the AOJ received copies of DD forms 2569, dated in 2004 and 2005. These documents established that the appellant was married and that the spouse was PA. Since the claim was initially received in 2005, the DD forms were contemporaneous and provided all the information that was needed to award benefits based upon the continued marriage to PA. In essence, the request for a 686c was superfluous. Therefore, an effective date of October 13, 2005, for the award of additional compensation for a dependent is warranted. ORDER An effective date of October 13, 2005, for the award of additional compensation for a dependent is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs