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