Citation Nr: 1142575 Decision Date: 11/18/11 Archive Date: 11/30/11 DOCKET NO. 07-31 879 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to an effective date earlier than November 1, 2005, for the grant of apportionment of the Veteran's Department of Veterans Affairs (VA) benefits on behalf of the Veteran's children. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Biswajit Chatterjee, Associate Counsel INTRODUCTION The Veteran served on active duty in the military from May to August 1984 and from November 1990 to May 1991. The Appellant is his ex-spouse, who is appealing on behalf of their minor children. This appeal to the Board of Veterans' Appeals (Board) is from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which granted the Appellant's claim for apportionment of the Veteran's benefits on behalf of the Veteran's minor children, and assigned a retroactive effective date of November 1, 2005. The Appellant testified at a formal Decision Review Officer hearing at the RO in December 2007. A transcript of the hearing is of record. The Appellant was also scheduled to appear for a video conference hearing before a Veterans Law Judge on July 22, 2008. However, she failed to report for that hearing. The Board also notes that a letter was sent to the Appellant in September 2011 informing her that she did not have representation. Specifically, she advised that the Military Order of the Purple Heart had provided notice that they did not represent her in her appeal. The Appellant was given the opportunity to designate a new representative. She was given 30 days to respond. To date, the Appellant has yet to respond. FINDINGS OF FACT 1. The Appellant filed an original claim for apportionment of the Veteran's VA benefits, on behalf of the Veteran's minor children, received on October 21, 2004. 2. In an April 2005 rating decision, the RO denied apportionment benefits to the Veteran's minor children because financial need was not established. 3. The Appellant received a copy/notice of the December 2004 duty-to-assist notice and the subsequent April 2005 rating decision, which were issued to the Appellant's existing address of record; and, despite the Appellant's contention to the contrary, there is simply no evidence whatsoever to contradict the presumption of administrative regularity or that these documents were returned as undeliverable. 4. After the Appellant failed to perfect an appeal, the April 2005 rating decision became final and binding on the Appellant based on the evidence then of record; and, there is no contention or evidence of record making any clear and unmistakable error (CUE) allegation with respect to this final decision. 5. The Appellant failed to submit any new and material evidence respecting financial need, which was not established at the time of the April 2005 denial of the previous apportionment claim. 6. A petition to reopen the previously denied claim for apportionment was received on October 4, 2005, which represented the first communication by the Appellant to VA following the final rating decision in April 2005. 7. Subsequently, in the May 2007 rating decision, the RO granted apportionment of the Veteran's VA benefits to the Veteran's minor children, effective from November 1, 2005. (CONTINUED NEXT PAGE) CONCLUSION OF LAW The criteria for an effective date earlier than November 1, 2005, for the grant of apportionment of the Veteran's VA benefits have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.156(a) and (b); 3.400(a) and (e); 3.458 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Since the Appellant's claim is being denied as a matter of law, the duty-to-notify-and-assist provisions of the Veterans Claims Assistance Act of 2000 (VCAA) do not apply. See Manning v. Principi, 16 Vet. App. 534 (2002) (VCAA has no effect on appeal limited to interpretation of law); see also 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). The VCAA does not apply because the issue presented is solely of statutory and regulatory interpretation and/or the respective claim is barred as a matter of law in that it cannot be substantiated. See Smith v. Gober, 14 Vet. App. 227, 230 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). See, too, VAOPGCPREC 5-2004 (June 23, 2004). Moreover, this appeal concerns a benefit provided under Chapter 53, Title 38, United States Code. The rules governing VA notice and assistance upon receipt of a claim for benefits, as outlined by the VCAA and in the provisions listed above, do not apply to claims for benefits provided under chapters other than Chapter 51. However, VA rules include special procedural requirements for simultaneously contested claims, such as apportionment. See 38 C.F.R. §§ 19.101, and 19.102. Upon the filing of a notice of disagreement (NOD) in a simultaneously contested claim, all interested parties and their representatives are to be furnished a copy of the statement of the case (SOC). See 38 C.F.R. § 19.101. When a substantive appeal is filed in a simultaneously contested claim, the content of the substantive appeal is furnished to the other contesting parties, to the extent that it contains information directly affecting the payment or potential payment of the benefit which is the subject of the contested claim. See 38 C.F.R. § 19.102. Here, it does appear that the Veteran was provided a copy of a September 2007 Statement of Case. There is also no indication that he was provided a copy of the transcript from the Appellant's December 2007 DRO hearing. Indeed, there is no evidence that any communication has been provided to the Veteran since May 2007. Nevertheless, given that the Appellant's claim for an earlier effective date for grant of apportionment is being denied, the Board finds there has been no prejudice to the Veteran in these oversights. The Appellant argues that an earlier effective date is warranted for the grant of apportionment of the Veteran's VA benefits. The Appellant asserts that the effective date should be October 21, 2004, the date of receipt of her initial claim for apportionment. The law provides that all or any part of a Veteran's pension or compensation benefits may be apportioned. 38 U.S.C.A. § 5307 (West 2002); 38 C.F.R. § 3.450 (2011). Additionally, where hardship is shown to exist, compensation benefits may be specially apportioned between the Veteran and his or her dependents on the basis of the facts in the individual case as long as it does not cause undue hardship to the other persons in interest. A Veteran's benefits will not be apportioned until the estranged spouse of a Veteran files claim for an apportioned share. If there are any children of the Veteran not in his custody an apportionment will not be authorized unless and until a claim for an apportioned share is filed in their behalf. 38 C.F.R. § 3.458(g) (2011). The laws applicable to effective dates provide that, except as otherwise provided, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application thereof. 38 U.S.C.A. § 5110(a) (West 2002). Generally, and except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation (DIC) based on an original claim, a claim reopened after 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 (2011). Indeed, there in an exception to the general rule for effective dates, as applicable to apportionment. Under 38 C.F.R. § 3.400(e), there are specific provisions governing the effective date for apportionment. Regulations concerning effective dates for apportionment provide that for original claims, the effective date shall be assigned in accordance with the facts found. However, on other than original claims, the effective date is from the first day of the month following the month in which claim is received for apportionment of a Veteran's award. 38 CFR § 3.400(e) (1). A further exception is made such that where payments to the Veteran have been interrupted, apportionment will be effective the day following date of last payment if a claim for apportionment is received within 1 year after that date. Id. However, a rating decision becomes final and binding if the Appellant does not timely perfect an appeal of the decision. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302. Previous determinations that are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of CUE. 38 C.F.R. § 3.105(a). The U.S. Court of Appeals for Veterans Claims (Court) held in Sears v. Principi, 16 Vet. App. 244, 248 (2002) that, "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." In order for the Appellant to be awarded an effective date based on an earlier claim, he or she has to show CUE in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). Moreover, there is no basis for a free-standing earlier effective date claim from matters addressed in a final rating decision. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). The proper effective date for new and material evidence other than service treatment records received after a final disallowance is the date of receipt of the claim to reopen or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(i); 38 C.F.R. §§ 3.400(q)(2), 3.400(r). However, when evidence, other than service treatment records, is received in the appeal period following a subsequent disallowance, resulting in a later grant of service connection, the effective date will be as though the former decision had not been rendered. 38 C.F.R. § 3.400(q)(1). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating intent to apply for VA benefits from a claimant or representative may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). The Appellant initially filed a claim for apportionment on October 21, 2004. In April 2005, the RO denied this claim because the Appellant failed to establish financial need. The inquiry turns to whether the April 2005 decision became final, or whether new and material evidence was received within one year of the decision (i.e., by April 2006). As set forth in 38 C.F.R. § 3.156(b) (2011), when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. Under Bond v. Shinseki, No. 2010-7096 (Fed. Cir. Oct. 7, 2011), the Federal Circuit found that § 3.156(b) requires that VA evaluate submissions received during the relevant period to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim. See also Buie v. Shinseki, 24 Vet. App. 242 (2010). The Federal Circuit case of Voracek v. Nicholson, 421 F.3d 1299 (Fed. Cir. 2005), provides further guidance. In Voracek, the Federal Circuit initially found that the definition for the phrase "new and material" contained in § 3.156(a) applies to § 3.156(b). After making this determination, it was noted that to qualify as "material" evidence under the revised version of § 3.156(a), the Appellant's statement must be evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the original claim for service connection disability. The Federal Circuit held that the Appellant's single statement that his condition "worsened" (submitted less than a year after he was awarded partial disability compensation) does not, on its face, relate in any way to his condition during the pendency of his original claim or to any other unestablished fact necessary to substantiate his original claim. Here also, the Appellant's October 2005 statement is unaccompanied by any evidence that might substantiate financial need for apportioning the Veteran's benefits. The Appellant simply provides a statement, "I am filing a claim for child support benefits from my husband [omitted] on behalf of our two daughters." The statement proceeds to name the two daughters, and state their birthdates and Social Security identification numbers. The Board emphasizes the October 2005 statement makes no reference to the financial condition of the Appellant and her daughters. Indeed, between April 2005 and April 2006, the only evidence submitted by the Appellant to the RO was a statement received on October 4, 2005. During this period, there was simply no new evidence relating to the unestablished fact of financial need. (The Board parenthetically notes that the Appellant did not submit detailed information regarding her monthly income and expenses until May 2007, over two years after the April 2005 rating decision; the RO then promptly granted the apportionment claim in a May 2007 rating decision, since the Appellant had provided sufficient information to establish financial need.) The Board finds there was no new and material evidence received within one year of the April 2005 rating decision, which denied the October 2004 original claim for apportionment. The Board also finds the April 2005 rating decision was not timely appealed, and the RO provided notification of procedural and appellate rights. The Appellant failed to appeal this decision, so it became final and binding on the Appellant based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (2011). The Appellant cannot establish an effective date for apportionment that occurs prior to April 15, 2005, when she was notified of the last final and binding rating denial of the apportionment claim. Sears, 16 Vet. App. at 248; Flash, 8 Vet. App. at 340. Without evidence of CUE in that final and binding decision, as a collateral attack, this prior determination in April 2005 precludes the Appellant from receiving an effective date for apportionment, retroactive to that earlier point in time. Here, however, the Appellant and her representative do not raise any CUE claim that would collaterally attack the April 2005 rating decision, and the record also does not reasonably raise the issue of CUE in that rating decision. The Appellant's sole contention appears to be that the April 2005 rating decision does not constitute a final and binding rating decision upon her original claim (October 21, 2004) since she allegedly failed to receive a copy or notice of the RO's December 2004 request for information concerning her original apportionment claim. The Board finds nothing in the claims file, however, indicating that the December 2004 duty-to-assist letter or the April 2005 rating decision was not mailed to her correct address of record. But, as the Court held in Saylock v. Derwinski, 3 Vet. App. 294, 395 (1992) (citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)), "[p]rinciples of administrative regularity dictate a presumption that Government officials 'have properly fulfilled their official duties.'" For VA purposes, "notice" means written notice sent to a claimant at his or her most recent address of record. 38 C.F.R. 3.1(q). The presumption of administrative regularity does not diminish the claimant's responsibility to keep VA informed of changes of address. If she does not do so, VA is not obligated to "turn up heaven and earth to find him." Hyson v. Brown, 5 Vet. App. 262, 265 (1993). Absent contravening evidence to overturn the presumption, there is simply no legal basis for the Board to disregard the principle of administrative regularity. The April 2005 denial of the apportionment claim was therefore final and binding on the merits. The Board must of necessity find that her original October 2004 claim had already been denied by the RO's April 2005 decision. Parenthetically, after receiving the April 2005 letter that denied her claim for apportionment, and that referenced the December 2004 notice letter, the Board is left to wonder why she did not report that she did not receive the December 2004 letter at that time. It seems inherently logical that the Appellant would immediately report the non-receipt of a letter that was deemed to crucial to determining her claim. Instead, the Appellant's assertion of non-receipt of the December 2004 letter was not made until January 2007. Such weighs against her assertion of non-receipt as well as her overall credibility on this point. The Board's review of the record shows no formal or informal communications by the Appellant to the VA regarding a claim for apportionment between the final denial in April 2005 and the more recent petition to reopen the claim for apportionment on October 4, 2005. Therefore, the Board finds no petition to reopen the Appellant's apportionment claim that is earlier than October 4, 2005. Following the final and binding April 2005 rating decision, the Appellant's next communication concerning apportionment was received by VA on October 4, 2005. As mentioned, on other than original claims, the effective date is from the first day of the month following the month in which claim is received for apportionment of a Veteran's award. See 38 CFR § 3.400(e)(1). Thus, the apportionment is effective from the first day of the month following the month in which the petition to reopen the apportionment claim was received, i.e. November 1, 2005; this latter date is the currently assigned effective date for the grant of apportionment benefits. See 38 C.F.R. § 3.400(a), (e). Since the effective date in this case is governed by the date of receipt of the petition to reopen the claim for the apportionment, there is no basis for awarding apportionment any earlier than the month following the date of the petition to reopen the claim for the apportionment. See id. To emphasize, the general rule for effective dates does not apply here (to an issue of apportionment), so there is simply no need to consider the date of entitlement to apportionment of VA benefits in determining the effective date. See 38 C.F.R. § 3.400(e). As such, the Board finds no legal basis to provide any effective date earlier than November 1, 2005. The Board is sympathetic to the Appellant's arguments but, unfortunately, is unable to provide a legal remedy. See Owings v. Brown, 8 Vet. App. 17, 23 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992) ("This Court must interpret the law as it exists, and cannot 'extend . . . benefits out of sympathy for a particular [claimant].'"). Since the Appellant's claim fails because of absence of legal merit or lack of entitlement under the law, the claim must be denied. Sabonis, 6 Vet. App. 426. ORDER An effective date earlier than November 1, 2005, for the grant of apportionment of the Veteran's VA benefits on behalf of his children is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs