Citation Nr: 0813535 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 06-05 479 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to an earlier effective date than February 9, 2005, for additional compensation benefits for dependents. ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The veteran served on active duty from November 1977 to May 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. FINDINGS OF FACT 1. The veteran served on active duty from November 1977 to May 1992. 2. The veteran submitted his original claim for disability compensation benefits in May 1992. He identified on his claim that he had been married twice, divorced once, and had two children that were not in his custody at that time. 3. The RO asked for evidence of his divorce, his remarriage, and birth certificates for the two children in May 1992. The RO also wrote separately to ask the veteran to provide the social security numbers for his dependents in May 1992. 4. The veteran did not respond to the RO's correspondence. 5. The veteran was granted service connection for several disabilities and given a combined disability evaluation of 40 percent in October 1992. He was provided notice of the rating action, to include that he was being paid as a veteran with no dependents, in November 1992. He was also provided notice of entitlement to additional compensation for dependents if he had a 30 percent or more disability evaluation. 6. The veteran submitted an electronic query regarding the status of a "pending claim" that was received on January 11, 2005. He provided information on his current marriage and birth of a child. 7. The veteran's formal request to add his spouse and child as dependents was received at the RO in Baltimore, Maryland, on February 9, 2005. CONCLUSION OF LAW The criteria for an effective date of January 11, 2005, for additional compensation benefits for a dependent spouse have been met. 38 U.S.C.A. §§ 1115, 5101, 5110, 5111, 5124, 6303, 7722 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.4, 3.31, 3.151, 3.155, 3.204, 3.216, 3.400, 3.401 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background The veteran served on active duty from November 1977 to May 1992. He submitted a VA Form 21-526, Veteran's Application for Compensation or Pension, as his original claim for disability compensation benefits in May 1992. The veteran was living in Alabama at the time he submitted his claim. The veteran reported he had been married twice. He listed a divorce from his first wife, T.W., in December 1989. He reported that he married his then current wife, B.W., in April 1990. He listed her social security number on his claim. The veteran also provided the names of two children from his first marriage that were in the custody of his ex- wife. They were J.W. and M.W. The veteran provided the date of birth for the two children. He did not include their social security numbers. The Board notes that the VA Form 21-526, completed by the veteran, informed him that a certified copy of the public or church record of his current marriage was required. The form also informed the veteran that a certified copy of the public or church record of birth was required for each unmarried child. The RO wrote to the veteran on three occasions in May 1992. The first letter asked the veteran to supply the social security number of his dependents [children]. The reason for the requirement was explained. The letter advised that the information should be submitted as soon as possible, but preferably within 60 days. The veteran was told that the evidence had to be received within one year of the letter, otherwise, if entitlement to benefits was established, payments could be authorized only from the date VA received the evidence. The second letter asked that the veteran provide a certified copy of the public record ending his marriage to T.W. Further, he should submit a certified copy of his marriage certificate [to B.W.]. Third, certified copies of birth certificates for J.W. and M.W. should be provided to VA. The veteran was told that this information was needed in order to determine the amount of money VA could pay. The third letter advised the veteran he was being scheduled for a VA examination. All three letters were addressed to the veteran at the address he used when he submitted his claim. His claim was received on May 11, 1992. The first two letters were dated May 22, 1992, and the third on May 29, 1992. None of the letters were returned to the RO for any reason. Associated with the claims folder is a Report of Contact dated June 4, 1992. The veteran notified the RO that he had relocated to Nashville, Tennessee. He provided a new address at that time. The veteran was granted service connection for several disabilities by way of a rating decision dated in October 1992. The veteran's combined service-connected disability evaluation was 40 percent. The RO provided notice of the rating action in November 1992. The notice letter informed the veteran that he was being paid at the no dependent rate. He was also informed of his appellate rights, by way of an enclosure. The letter also noted that there were other enclosures that explained factors affecting his benefits and other benefits he may be entitled to receive. One of those enclosures was a VA Form 21-8764, Disability Compensation Award Attachment Important Information. This form provided information on a number of benefits, to include entitlement to additional compensation for dependents if there is a 30 percent disability award or greater. The form also advised the veteran that he should notify the RO immediately of any change in address. The veteran provided notice of a change of address to Kansas in January 1993. The veteran stated that his letter was official notification of relocation as outlined in the letter he received from the RO that detailed his disability compensation. The next item in his claims folder is a copy of a VA Form 21- 8951, Notice of Waiver of VA Compensation or Pension to Receive Military Pay and Allowances. The RO mailed the form to the veteran at the address provided in January 1993. The form was returned with a notation of the veteran not being at the address. There is no indication of the veteran reporting a change of address after January 1993. There was nothing further from the veteran until he submitted proof of his marital status and of his children in February 2005. The submission was made to the RO in Baltimore, Maryland, and received there on February 9, 2005. The veteran addressed the issue of the withholding of the separation pay he received at the time of his discharge in 1992. He provided the evidence of his dependents to document his claim as to why he should have been compensated at the with dependents rate from the time he was granted service connection in 1992. He provided a discussion of changes in the status of dependents, based on his divorce from B.W., and then his remarriage, and the ages of his children, and the addition of a child in 2004. The veteran included a VA Form 21-686c, Declaration of Marital Status that was dated February 7, 2005. The veteran listed his address as Gaithersburg, Maryland. He reported his dates of marriage and divorce from T.W. and B.W. He reported that he married I.W. in December 1999. The veteran also provided the social security numbers of J.W. and M.W., along with a third child, A.W., that was born in March 2004. He noted that he did not know the location of either J.W. or M.W. He included a copy of the birth certificate for A.W. The document listed the veteran and I.W. as parents. The veteran submitted a copy of his marriage certificate to I.W., showing their marriage in December 1999. The veteran included a copy of the final decree of divorce from T.W., effective December 1989. He also included evidence of the dissolution of his marriage from B.W., in May 1999. Associated with the claims folder is a printout, dated March 17, 2005, of what appears to be an electronic query by the veteran regarding the status of the repayment of his severance pay. The date of the query is January 11, 2005. Identifying information on the printout shows the document to be from the VA's Inquiry Routing and Information System (IRIS). The veteran also provided information on the status of his dependents. This appears to be an earlier effort by the veteran to show that his repayment of his separation pay should include additional compensation for his dependents since 1992. The RO added the veteran's new spouse, I.W., and child, A.W., to his award in August 2005. The effective date for the addition of his wife was from the date of claim [February 1995] and compensation from March 1, 2005. The RO explained that the veteran did not provide evidence of the marriage within one year of the occurrence. A.W. was added to the veteran's award as of April 1, 2004, the first day of the month following her birth. The RO explained that this was because notice of her birth was received within one year of the birth date. The RO went on to explain that additional compensation could not be paid for T.W. because the veteran was divorced from her prior to his claim in 1992. Retroactive benefits could not be paid for B.W., J.W., or M.W. because the veteran was advised to provide information about them in May 1992. He had one year to provide the information and did not. Further, the November 1992 notice letter advised the veteran he was paid at the no dependent rate. He had one year from the date of that letter to submit evidence regarding his dependents. Finally, the RO said evidence was not received until February 16, 2005 [sic]. The veteran submitted his notice of disagreement (NOD) in September 2005. The veteran contended that he listed his wife, B.W., and two children, J.W. and M.W. on his 21-526 of May 1992. He further contends that this provided notice to VA of his dependents and it was VA's error to not provide the payment for his dependents. He also disagreed with the decision to not pay retroactive payments for his marriage to I.W. The veteran maintains that VA did not inform him that it was his responsibility to keep VA informed of a change in his dependents. He said this was only mentioned to him in the notice letter of August 2005. The veteran included a copy of his original claim form from May 1992. He also included a copy of the RO's notice of letter of November 1992. II. Analysis Applicable regulations provide that a claim may be either a formal or informal written communication "requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p) (2007). A claim, whether "formal" or "informal," must be "in writing" in order to be considered a "claim" or "application" for benefits. See Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). Any claim for VA benefits must be submitted in the form prescribed by the Secretary. 38 U.S.C.A. § 5101(a) (West Supp. 2007); 38 C.F.R. § 3.151 (2007). Section § 5101(a) is a clause of general applicability and mandates that a claim must be filed in order for any type of benefit to accrue or be paid. See Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). An informal claim is any communication indicating an intent to apply for one or more benefits, and must identify the benefit sought. 38 C.F.R. § 3.155(a) (2007). 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) (West 2002); 38 C.F.R. § 3.400 (2007). 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) (West 2002). Veterans having a 30 percent or more service-connected condition 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 (West 2002); 38 C.F.R. § 3.4(b)(2) (2007). The effective date of the award of any benefit or increase by reason of marriage or the birth/adoption of a child shall be the date of that event if proof is received by VA within a year from the date of marriage, birth or adoption. 38 U.S.C.A. § 5110(n) (West 2002). The implementing regulation provides the effective date for additional compensation for a dependent for compensation will be the latest of the following dates: (1) date of claim, which means date of veteran's marriage or birth of a child, if the evidence of the event is received within one year of the event; otherwise, date notice is received of the dependent's existence if the evidence is received within one year of VA request; (2) date dependency arises; (3) effective date of the qualifying disability rating; or, (4) date of commencement of the veteran's award. 38 C.F.R. § 3.401(b) (2007). Regardless of VA regulations concerning effective dates of awards, payment of monetary benefits based on, inter alia, increased awards 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. However, beneficiaries will be deemed to be in receipt of monetary benefits during the period between the effective date of the award and the date payment commences for the purpose of all laws administered by VA. 38 C.F.R. § 3.31 (2007). The term increased award means an award which is increased because of, inter alia, an added dependent. 38 C.F.R. § 3.31(a). The facts in this case are not in dispute. Rather, the veteran contends VA failed to act on available evidence of record to pay him additional compensation for his dependents; dependents he believes were adequately identified by the submission of his claim in May 1992. Further, he contends VA did not provide advance notice to him to report his latest marriage and birth of a child at the time it occurred in order to receive the earliest effective date for additional compensation for a dependent. The veteran did list his divorce from T.W. and his marriage to B.W. on his original claim in 1992. He also listed his two children, and their birthdates, on his claim form. However, the veteran's claim for additional compensation on the basis of his dependents was incomplete, thus the RO wrote to him to tell him what he needed to do to complete his application for benefits in May 1992. The RO sent two letters to tell the veteran of the need for the social security numbers and birth certificates for his dependents, and evidence of his divorce and marriage. The veteran failed to respond to either letter. See 38 C.F.R. § 3.109 (Time limit for filing evidence where an application is incomplete). The veteran had one year to submit the evidence to complete his application. The social security numbers were information required by 38 U.S.C.A. § 5101(c) and 38 C.F.R. § 3.216. Moreover, both the statute and regulation require the RO to deny the application for payment of compensation to a person who fails to furnish the Secretary (VA) with the social security number(s) required. VA may reconsider the application for compensation if such person furnishes the Secretary with such social security number. Id. The veteran's contention that the evidence contained on his application form was sufficient is without merit. Both the form, and the letters sent to him identified the additional evidence that was required. He did not provide it. He cannot now rely on the information from the claims form alone to establish his entitlement from 1992. See McColley v. West, 13 Vet. App. 553, 556-57 (2000) (citing to Jones, supra, for requirement that a claim be in a form specified by the Secretary and that the VA application form required submission of marriage certificate and certified copy of the public or church record of birth). The RO attempted to obtain the necessary additional information from the veteran but he failed to respond. Moreover, the veteran did not provide the requested information within one year of the notice of his decision in November 1992. The Board notes that current law allows that VA will, with certain exceptions, accept the statement of a claimant as proof of marriage, dissolution of a marriage, birth of a child, or death of a dependent. See 38 U.S.C.A. § 5124 (West 2002); 38 C.F.R. § 3.204(a)(1) (2007). However, the statute allowing for acceptance of statements in this regard did not become effective until November 2, 1994. See Pub. L. 103- 446, § 301(a), Nov. 2, 1994, 108 Stat. 4657 (codified at 38 U.S.C.A. § 5124). Final regulations to implement the statute were issued in November 1996. See 61 Fed. Reg. 56, 626 (Nov. 4, 1996) (codified at 38 C.F.R. § 3.204(a)). Thus, in 1992, the veteran was required to provide the information requested by the RO in order to complete his claim. The Board further 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 United States Court of Appeals for Veterans Claims (Court), has also "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); see also Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir., 2001) (the presumption of regularity, presumed that the Department had properly discharged its responsibilities by attaching a copy of the notice of appellate rights to the notification letter). The Court has also stated that "[i]t is well settled that 'clear evidence to the contrary' is required to rebut the presumption of regularity, i.e. the presumption that notice was sent in the regular course of government action." Schoolman, 12 Vet. App. at 310. (citations omitted). The veteran has not said that he did not receive the two letters from May 1992 that asked for information regarding the social security numbers for his dependents and evidence of his divorce, remarriage, and birth certificates. The letters were mailed to his address in Alabama and the record shows he moved to Tennessee at some point soon after the letters were mailed, or even at the time the letters were mailed. Still, the letters were not returned and the veteran has not alleged nonreceipt of the letters. Thus the presumption of regularity in providing him notice of the additional evidence required to complete his application is established. There is no evidence of record to the contrary. Moreover, the veteran demonstrated receipt of the notice of the rating decision, and the attachments providing additional pertinent information, when he submitted his change of address information in 1993. He pointedly referenced the guidance to provide such information as it was contained in the notice provided to him by VA. Further, he submitted a copy of the RO's letter of November 1992 with his current appeal. Given the undisputed facts, and the applicable law, there is no basis to grant an effective date earlier than February 9, 2005, based on the veteran's contentions of having provided the necessary information in 1992. While the veteran may have become eligible for the additional compensation in October 1992, he was still required to submit a completed application for the benefits sought. He failed to provide the requested information within one year of the letters from May 1992. The statute and regulation pertaining to the provision of social security numbers prohibited the payment of additional compensation. Moreover, he did not provide any of the needed information within one year of the notice of the rating decision sent to him in November 1992. Accordingly, payment cannot be made based on the claim from 1992. The veteran also contends that VA never informed him of the need to submit evidence of his later divorce, remarriage, and birth of another child in order to receive additional compensation. He disputes that it was his responsibility to inform VA of the change in dependents. There is no sound basis to the veteran's contentions. The VA Form 21-8764 provided to him in November 1992 informed him of the need to promptly advise VA of any change in the status of his dependents. He was advised that additional compensation was payable to veterans with a 30 percent disability evaluation or higher. He was also told that his payments were at the without dependent rate. Absent the veteran providing information in response to the RO's requests, there was nothing further for VA to do in this case. There is no outstanding legal authority for the RO to contact the veteran to determine if he might be eligible for additional benefits on a regular basis. The Board notes that the Secretary does have a requirement to engage in outreach services to provide information to eligible veterans to aid them in their claims. See 38 U.S.C.A. § 6303 (West Supp. 2007) (formerly codified at 38 U.S.C.A. § 7722). However, even if a failure to comply with the applicable provisions could be established, such a failure still could not result in an earlier effective date. See Rodriguez, 189 F.3d at 1355 (Nothing in [section 7722(d)] indicates, or even suggests, that the Secretary's failure to provide assistance to a claimant justifies ignoring the unequivocal command in 38 U.S.C.A. § 5110(a) that the effective date of benefits cannot be earlier than the filing of an application therefore); see also Andrews v. Principi, 351 F.3d 1134, 1137 (Fed. Cir. 2003) (The VA's failure to notify under § 7722(b) and (c)(1) may not serve as the basis for awarding an effective date in contravention to the statute). As noted in both Rodriguez and Andrews the veteran would still have had to file a claim for the benefits sought and that the effective date provisions of 38 U.S.C.A. § 5110 govern. Absent the filing of an actual claim, entitlement to an earlier effective date cannot be established. The final possibility for establishing an earlier effective date involves the electronic query submitted by the veteran in January 2005. The query was a discussion of the repayment of the veteran's separation pay and his belief as to how the recoupment of that pay was nearly complete. He provided information on the status of his dependents from 1992 to 2005. He clearly felt that his recoupment should include additional compensation that was due to him because of his dependents. He noted his divorce in May 1999 and his most recent marriage in December 1999 and the birth of a child in March 2004. This submission can be considered an informal claim for VA benefits. 38 C.F.R. § 3.155. The veteran completed the requirements for a formal claim with his submission that was received on February 9, 2005. This included his declaration of marital status, evidence of his divorce from B.W. and marriage to I.W., and the birth of his daughter A.W. As this information, or formal claim, was received within one year of the informal claim, the veteran is entitled to have his January 11, 2005, submission considered to be his date of claim. See 38 C.F.R. § 3.155(a). To this extent the veteran's claim for an earlier effective date for additional compensation for a dependent spouse is granted, effective from January 11, 2005. As his daughter was added to his award effective April 1, 2004, since her birth was reported within one year of its occurrence, the effective date currently assigned is more beneficial and will not change as a result of this decision. As discussed earlier in this decision, there is no basis for an earlier effective date for the addition of his daughter to the award prior to April 1, 2004, and no basis to pay additional benefits for dependent sons and his former wife. Finally, the Board notes that in cases such as this where the law is dispositive and there is no additional evidence that could be obtained to substantiate the claim, no further action is required to comply with the notice and duty to assist requirements codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007) or 38 C.F.R. § 3.159. See VAOPGCPREC 5-2004; see also Valiao v. Principi, 17 Vet. App. 229 (2003). ORDER Entitlement to an effective date of January 11, 2005, for the award of additional compensation for a dependent spouse is granted subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs