Citation Nr: 1047876 Decision Date: 12/27/10 Archive Date: 01/03/11 DOCKET NO. 07-11 515 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an effective date earlier than September 1, 2005 for the award of an apportionment of the Veteran's disability compensation benefits. REPRESENTATION The Veteran represented by: The American Legion ATTORNEY FOR THE BOARD B.W. Hennings, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1978 to March 1986. The appellant seeks benefits as the mother of the Veteran's minor child. This matter comes before the Board of Veterans' Appeals (Board) from a January 2006 decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted the appellant an apportionment of the Veteran's disability compensation benefits. FINDINGS OF FACT 1. A claim for apportionment of the Veteran's VA benefits was received on July 13, 2004. 2. The presumption of regularity that the denial of apportionment was sent to the appellant's last address of record in August 2004 has been rebutted. 3. The Veteran was not residing with his child and was not reasonably discharging his responsibility for the child's support as of May 1, 2004. CONCLUSION OF LAW The requirements for an effective date of May 1, 2004 for the award of an apportionment of the Veteran's disability compensation benefits have been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.1(q), 3.151, 3.400 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Legal Criteria The effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based upon an original claim, a claim reopened after final disallowance, or a claim for increase is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(b)(1) (West 2002); 38 C.F.R. § 3.400 (2010). With respect to awards of an apportionment of benefits, the effective date of an original claim will be set in accordance with the facts found. 38 C.F.R. § 3.400(e). On other than original claims, the date will be set on the first date of the month following the month the claim for an apportionment of a veteran's award is received. 38 C.F.R. § 3.400(e)(1). Analysis The appellant filed a claim for an apportionment of the Veteran's disability compensation benefits, which was received at the RO on July 13, 2004. In an August 2004 letter decision, the RO denied the claim. The appellant did not appeal that decision. The appellant filed another claim for an apportionment of the Veteran's benefits in August 2005. In a January 2006 decision, the RO granted the claim with an effective date of September 1, 2005 for the award of the apportionment, finding that the August 2005 claim was not an original claim. The appellant disagreed with the September 1, 2005, effective date assigned. In April 2007, the appellant submitted her substantive appeal, noting that she never received the August 2004 denial, as it was not sent to her correct address, a PO Box number. Because the current effective date of the award of an apportionment was based upon the date her August 2005 claim was received, the next question before the Board is whether there are any earlier, non-final, claims upon which an earlier effective date may be granted. In her April 2007 substantive appeal, the appellant asserted that she did not receive notice from VA August 2004 that her claim had been denied (as the denial was not sent to her PO Box). In fact, as shown by the substance of her February 2005 notice of disagreement, the appellant apparently was under the impression that her July 2004 letter had not been submitted to VA by the North Carolina Division of Veterans Affairs. The claims file indeed reveals that the August 2004 denial was sent to a [redacted] [redacted]. However, as the Veteran points out, her July 2004 Statement in Support of Claim specifically refers to a different PO Box address in the body of correspondence, as well as a phone number. The Board also notes that there is the [redacted] Drive address on the bottom of the form. Where VA mails a notice, there is a presumption of the regularity of the administrative process. Baxter v. Principi, 17 Vet. App. 407, 410 (2004); Mindenhall v. Brown, 7 Vet. App. 271 (1994). Particularly, the presumption is that the VA mailed the necessary notice to the claimant to the latest address of record. See Ashley v. Derwinski, 2 Vet. App. 306, 309 (1992). A claimant can rebut the presumption of regularity if she submits "clear evidence to the contrary"; however, a claimant's assertion of non-receipt of notice alone is insufficient evidence. Baxter, 17 Vet. App. at 410. Evidence that VA's "'regular' mailing practices were not regular or that they are not followed," effectively rebuts the presumption and the "burden shifts to the Secretary to establish" that VA mailed the notice to the claimant. Ashley, 2 Vet. App. 309. Moreover, where a government action "on its face appears irregular. . . the presumption operates in the reverse. If it appears irregular, it is irregular, and the burden shifts to the proponent to show the contrary." United States v. Roses, Inc., 706 F.2d 1563, 1566-67 (1983). According to her April 2007 substantive appeal, the appellant never received the August 2004 denial of apportionment, as it was not sent to the PO Box she specifically listed on the claim. In addition, the Board notes that three separate telephone numbers were provided. The RO should have sent notifications to both addresses listed on the form, or at the very least should have attempted to contact the appellant in order to resolve the issue of the best address to which to send correspondence. The Board notes that notice means, "written notice sent to a claimant or payee at his or her latest address of record." 38 C.F.R. § 3.1(q). Thus, the Board finds that the RO's action on its face appears irregular (as it ignored the PO box - the latest address- that the appellant specifically noted in her claim), therefore it is irregular, and it must be concluded that the presumption of regularity that the August 2004 denial letter was mailed to the appellant's latest address of record in August has been rebutted because it does not appear that letter was actually mailed to the appellant's latest address of record (the PO Box). Absent evidence that the appellant was provided notice of the August 2004 denial, the Board cannot presume that such pertinent notice was sent to, and received by, the appellant. Without such notice, the there can be no final August 2004 decision. Therefore, the benefit of the doubt must be given to the claimant and it must be concluded that the July 2004 claim for apportionment is still active and an original claim for apportionment. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As the July 2004 claim is an original claim, the effective date is not limited to the date of the claim. Rather, as noted above, the effective date shall be in accordance with the facts found. See 38 C.F.R. § 3.400(e). The Board notes that the regulation governing apportionment provides that an apportionment may be awarded on behalf of a veteran's children if the veteran is not residing with the children and the veteran is not reasonably discharging his responsibility for the children's support. 38 C.F.R. § 3.450(a)(1)(ii). In the present case, the appellant contends in her July 2004 claim that the Veteran had not paid child support in over two months and had done nothing about health insurance for his child. The Board also notes that the Veteran did not dispute this assertion of not paying child support as part of the July 2004 claim, although he did indicate he was paying child support in December 2005 (as part of the August 2005 claim). Therefore, the Board finds that the evidence supports that the Veteran was not residing with his child and was not reasonably discharging his responsibility for the child's support as of May 1, 2004. Thus, the Board finds that to be a reasonable effective date for the apportionment award, in accordance with the facts found. See 38 C.F.R. § 3.400(e). The Board finds no basis for awarding an apportionment for prior to that time. In that regard, there are no allegations in the record that the Veteran was not reasonably discharging responsibility for the child's support prior to May 1, 2004. In short, the Board finds that the facts support an effective date of May 1, 2004, but no earlier. Notice and Assistance Requirements VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). This appeal, however, is not subject to the rules governing VA notice and assistance upon receipt of a claim for benefits as it concerns "Special Provisions Relating to Benefits" under 38 U.S.C. Chapter 53 and not "Claims, Effective Dates, and Payments" under 38 U.S.C. Chapter 51. Sims v. Nicholson, 19 Vet. App. 453 (2006); Lueras v. Principi, 18 Vet. App. 435 (2004) (38 U.S.C. Chapter 53 does not address the adjudication or granting of benefits as does Chapter 51); Barger v. Principi, 16 Vet. App. 132 (2002). However, a claim for an apportionment is a contested claim, and is subject to the special procedural regulations set forth in 38 C.F.R. §§ 19.100, 19.101, 19.102 (2010). The applicable contested claims procedures were followed in this case, in the sense that the Veteran and his representatives were notified of the pendency of the appeal. In addition, it does not appear that the Veteran has contested the effective date of the appellant's apportionment and in fact, his representatives affirmatively argued for an earlier effective date for the apportionment in a November 2010 submission. Therefore, proceeding to a decision on the claim at this time is not prejudicial to the Veteran. In addition, the Board notes that this is a favorable decision for the appellant. ORDER An effective date of May 1, 2004 for the grant of apportionment of the Veteran's VA benefits on behalf of his minor child is granted, subject to governing criteria applicable to the payment of monetary benefits. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs