Citation Nr: 1136033 Decision Date: 09/26/11 Archive Date: 10/03/11 DOCKET NO. 09-00 825 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an effective date prior to June 1, 2008, for the award of additional compensation for a dependent. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD N. Kroes, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1967 to January 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) which awarded additional benefits for the Veteran's spouse effective June 1, 2008. A Board hearing was requested and scheduled; however, the Veteran withdrew his hearing request in July 2011. FINDINGS OF FACT 1. The Veteran did not respond to the RO's August 2004 request for additional dependency information within one year of the request. 2. The Veteran filed a claim to receive additional benefits for a dependent on May 19, 2008. CONCLUSION OF LAW The criteria for an effective date earlier than June 1, 2008 for the award of additional compensation for a dependent have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.400, 3.401(b) (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2010)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). In this case, in July 2008 letters, the Veteran was provided notice regarding what information and evidence was needed to substantiate his claim for additional compensation benefits for his spouse. However, the appeal arises from the initial award of additional benefits for his spouse. In Dingess, the Court held that in cases in which the claim has been granted and an initial effective date has been assigned, the claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also 38 C.F.R. § 3.159(b)(3)(i) (2010). While Dingess dealt with the award of service connection, the ultimate conclusions reached are applicable in this case. Here, because the claim for additional benefits for a spouse was granted, VA's duty to notify in this case has been satisfied. See generally Turk v. Peake, 21 Vet. App. 565 (2008) (where a party appeals from an original assignment of a disability rating, the claim is classified as an original claim, rather than as one for an increased rating); see also Shipwash v. Brown, 8 Vet. App. 218, 225 (1995); see also Fenderson v. West, 12 Vet. App. 119 (1999) (establishing that initial appeals of a disability rating for a service-connected disability fall under the category of "original claims"). Additionally, the question in this case concerns the date the Veteran filed his claim for additional benefits for a dependent, and concerns evidence already contained in the claims file. The Veteran does not contend that any additional evidence exists to support his claim. Rather, he argues that evidence submitted in 2001 supports his claim for an earlier effective date. Thus, there is no indication that any further notice or assistance could aid the Veteran in substantiating his claim. See Valiao v. Principi, 17 Vet. App. 229, 232 (2003). As discussed above, the Veteran was notified and aware of the evidence needed to substantiate the claim. The Veteran was an active participant in the claims process by submitting the requested information and by providing argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Veteran seeks an effective date earlier than June 1, 2008 for the award of additional compensation benefits for his spouse. An additional amount of compensation may be payable for a spouse, child, and/or dependent parent where a veteran is entitled to compensation based on disability evaluated as 30 per centum or more disabling. 38 C.F.R. § 3.4(b)(2) (2010). Awards of additional compensation for dependents will be effective the latest of the following: (1) Date of claim. This term means the following, listed in their order of applicability: (i) Date of veteran's marriage, or birth of his or her child, or, adoption of a child, if the evidence of the event is received within 1 year of the event; otherwise (ii) Date notice is received of the dependent's existence, if evidence is received within 1 year of the VA request. (2) Date dependency arises. (3) Effective date of the qualifying disability rating provided evidence of dependency is received within 1 year of notification of such rating action. (4) Date of commencement of veteran's award. 38 C.F.R. § 3.401(b) (2010). The Veteran filed claims for service connection and an increased rating on April 18, 2001. A marriage certificate appears to have been submitted with that claim. The marriage certificate indicates that the Veteran married his current wife on December 12, 1998 and that each had been married previously. An October 2002 rating decision denied the claims for service connection and increased rating and the Veteran's combined service-connected evaluation remained noncompensable. The Veteran appealed that rating decision. Thereafter, an August 2004 rating decision granted the Veteran's claims for service connection and he was assigned a combined disability rating of 40 percent, effective April 18, 2001. Notice of this decision was provided on August 25, 2004. The letter noted that before VA could pay additional benefits for dependents, if any, the Veteran needed to submit VA Form 21-686c, "Declaration Of Status Of Dependents." The letter also noted that VA may be able to pay the Veteran from the date VA received the claim, if VA receives the information or evidence within one year from the date of the letter and it is decided that the Veteran is entitled to VA benefits. The Veteran was notified that if VA did not receive the evidence within one year from the date of the letter, VA may only be able to pay the Veteran from the date VA received the evidence. The letter indicates that a VA Form 21-686c was enclosed. The letter was not returned as undeliverable. The Veteran did not submit a VA Form 21-686c within one year after the August 2004 notice letter was sent. The Veteran asserts that he never received the VA Form 21-686c. He has submitted no additional evidence to support this assertion. While he contends on his substantive appeal submitted in January 2009 that "to this day" he had not ever seen a VA Form 21-686c, the Board notes he actually provided a partially completed form in July 2008. The presumption of regularity applies to government agencies in the conduct of their official duties. See Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992). By application of that presumption, it is presumed that the Veteran received the above mentioned VA form when he received notice of the August 2004 decision. The presumption of regularity has not been rebutted by clear evidence showing that the Veteran did not receive the above form. In any event, the Veteran has not alleged that he did not received the August 25, 2004 notice letter which asked him to submit a VA Form 21-686c within one year. On May 19, 2008, the Veteran submitted an informal claim for additional compensation for a dependent. He subsequently submitted his marriage certificate, a divorce decree, and a VA Form 21-686c. In August 2008, the RO added the Veteran's spouse to his award, effective June 1, 2008. The Veteran disagreed with the effective date of the additional compensation for a dependent and perfected an appeal as to that issue. He seeks an effective date consistent with his 2001 claim for service connection and an increased rating. The Veteran was married in 1998 and did not submit his marriage certificate to VA until 2001. As evidence of the marriage was not received within a year of the marriage, the date of marriage cannot be considered the date of claim. See 38 C.F.R. § 3.401(b)(1)(i). The Veteran argues that he should be entitled to additional compensation for his spouse from 2001 simply because he submitted his marriage certificate at that time. However, the Veteran did not meet the threshold requirements to be awarded additional benefits for dependents at that time. He was not assigned a disability rating of 30 percent or higher, which is needed to qualify for additional compensation for a dependent, until the August 2004 rating decision. When the August 2004 rating decision awarded sufficient compensation, there was no information indicating whether the Veteran remained married to D.M. at that time. More importantly, the marriage certificate of record in 2001 indicated that both the Veteran and his wife had been married previously, but no information as to the date or place of dissolution of those marriages was of record to permit a determination as to the actual validity of the Veteran's marriage to D.M. See 38 C.F.R. § 3.1(j) ("Marriage" means a marriage valid under the law of the place where the parties resided at the time of the marriage or the law of the place where the parties resided when the right to benefits accrued.). Accordingly, the RO's request in August 2004 that the Veteran complete a VA Form 21-686c to obtain such information prior to awarding additional benefits for a dependent was appropriate. Unfortunately, the Veteran did not respond to that request for information within one year of the request and to the extent that a claim for additional benefits for a dependent may have been pending, such was abandoned. See 38 C.F.R. § 3.158. The Veteran filed an informal claim for additional compensation for a dependent on May 14, 2008. He subsequently submitted a marriage certificate, a VA Form 21-686c, and a divorce decree. At that time, VA was able to establish that the Veteran had a qualifying dependent and award additional compensation. Given the above, the Board finds that an effective date for the award of additional compensation for a dependent cannot be earlier than the June 1, 2008 date of claim, as the Veteran did not respond to the August 2004 request for dependency information within 1 year of notification of the rating action establishing eligibility to additional benefits. See 38 C.F.R. § 3.401 (2010). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to an effective date prior to June 1, 2008, for the award of additional compensation for a dependent, is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs