Citation Nr: 1313294 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 10-34 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an effective date earlier than March 1, 2010 for the addition of the Veteran's spouse and stepchildren as dependents for additional compensation purposes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty from August 1992 to January 2002. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 decision letter of the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO). By that decision letter, the RO, added the Veteran's spouse and stepchildren as his dependents, effective February 22, 2010--the date VA received his dependency claim. The Veteran was notified that his payment start date was March 1, 2010. The Veteran appealed the April 2010 notice letter to the Board. In May 2012, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a video hearing conducted via the Philadelphia, Pennsylvania RO. A copy of the hearing transcript is of record. FINDINGS OF FACT 1. The Veteran has been in receipt of a combined 40 percent evaluation for his service-connected disabilities since January 20, 2002. 2. The Veteran and M. were married on December [redacted], 2007. 3. M. and R. became the Veteran's dependent stepchildren on December [redacted], 2007. 4. On February 22, 2010, the RO received the Veteran's claim for the addition of his spouse (M.) and stepchildren children (M. and R.) as dependents for additional compensation purposes. 5. The date of commencement of the Veteran's award is March 1, 2010. CONCLUSION OF LAW The criteria for an effective date earlier than March 1, 2010 for the addition of the Veteran's spouse and stepchildren as dependents for additional compensation purposes have not been met. 38 U.S.C.A. §§ 1115, 5110, 5111 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.31, 3.155, 3.401 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act (VCAA) VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). With respect to VA's duty to notify, the Veteran was provided a VA Form 21-5038 in February 2010 that, in pertinent part, informed him that his award of benefits could include compensation for his dependents. He completed the attached form, which was then construed as his claim to his spouse and stepchildren as his dependents. There is no indication that he was explicitly provided notice of how VA would assign the effective of award for those dependents. However, the Board finds no prejudice to the Veteran. First, because the matter at issue concerns the effective date assigned following an award of a dependency allowance, section 5103(a) notice is not necessary. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006) (holding that once a decision awarding service connection and assigning a disability rating and an effective date has been made, the section 5103(a) notice has served its purpose, and its application is no longer required because the claim has been substantiated). Second, statements received from the Veteran, to include his April 2010 notice of disagreement, as well as his personal testimony show that he had possessed actual knowledge of the criteria necessary to award an earlier effective. He even presented evidence that he believed would meet this purpose. As for VA's duty to assist, the question in this case concerns the date the Veteran filed his claim for additional benefits for dependents, and concerns evidence already contained in the claims file. The Veteran does not contend that any additional evidence exists to support this claim. Rather, as discussed in more detail below, he asserts that evidence of record supports his claim for an earlier effective date. 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). Discussion of the Veteran's May 2012 personal hearing is also necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. The earlier effective date issue was identified as an issue at the hearing. Information was elicited from the Veteran concerning when he filed his claim to add his spouse and stepchildren as dependents. He was explicitly asked whether he had any evidence to show that he filed his claim earlier than 2010. 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. 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 v. Principi, 18 Vet. App. 112, 121 (2004). Any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway v. Principi, 353 F.3d at 1374, Dingess, 19 Vet. App. 473. II. Legal Analysis The Veteran contends that he is entitled to an effective date prior to March 1, 2010, for the addition of his spouse (M.) and stepchildren (M. and R.) for additional compensation purposes. He asserts that the effective date should be January 29, 2008 because this is the date he signed and dated a VA Form 21-686(c) listing M. and M. and R. as his dependents. A veteran rated at not less than 30 percent shall be entitled to additional compensation for dependents. See 38 U.S.C.A. § 1115 (West Supp. 2011); 38 C.F.R. § 3.4(b)(2) (2012). With regard to an appeal for additional compensation or pension for dependents, the effective date of an award will be the latest of the: (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 one year of the event; otherwise (ii) date notice is received of the dependent's existence, if evidence is received within one year of VA's request; (2) date dependency arises; (3) effective date of the qualifying disability rating provided evidence of dependency is received within one year of notification of such rating action; (4) date of commencement of veteran's award. 38 U.S.C.A. § 5110(f) (West 2002); 38 C.F.R. § 3.401(b) (2012). A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a) (West Supp. 2011); 38 C.F.R. § 3.151(a) (2012). 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) (2012). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (2012). Payment of monetary benefits based on an award or an increased award of compensation may not be made to an individual for any period before the first day of the calendar month following the month in which the award or increased award became effective. 38 U.S.C.A. § 5111(a) (West 2002); 38 C.F.R. § 3.31 (2012). The Veteran met the qualifying disability rating for entitlement to additional compensation for dependents in a November 2001 rating decision. See 38 U.S.C.A. § 1115 (West Supp. 2011). By that rating action, the RO granted service connection for temporomandibular joint dysfunction; right retropatellar knee syndrome; left retropatellar knee syndrome; and, post-concussion headaches. The above-cited service-connected disabilities were each assigned an initial 10 percent disability rating, effective January 20, 2002. The RO also granted service connection for residuals of a fracture of the right zygomatic arch; an initial noncompensable disability rating was assigned, effective January 20, 2002. The Veteran's combined service-connected disability rating was 40 percent, effective January 20, 2002. However, since evidence of dependency for his spouse, M., and stepchildren, R. and M., was not received within one year of notification of November 2001 rating action, the Board finds that January 20, 2002 is not applicable as a possible effective date for the claim on appeal. See 38 C.F.R. § 3.401(b)(3) (2012). In this case, on February 22, 2010, VA received VA Form 21-0538, Status of Dependent Questionnaire. The Veteran reported that he and M. were married on December [redacted], 2007, and as of that date, M. and R., entered his household on the date of marriage to M. Dependency thereby arose on December [redacted], 2007. See 38 C.F.R. § 3.401(b)(2). Although the Veteran and M. were married on December [redacted], 2007, and M. and R., his stepchildren, became the Veteran's dependents on December [redacted], 2007, the Veteran did not file a claim for the addition of his spouse (M.) and stepchildren (M. and R.) as dependents for additional compensation purposes with VA within one year of the marriage. To the contrary, and as noted above, the Veteran submitted 21-0538, Status of Dependent Questionnaire, on February 22, 2010. This was the first documented instance wherein he reported his marriage with M. (that occurred on December [redacted], 2007), and listing M. and R., who became his dependent stepchildren by marriage on December [redacted], 2007. It is also the first formal communication by the Veteran to VA indicating an intent to apply for additional compensation for dependents. See 38 C.F.R. § 3.155(a). The Board notes that a VA Form 119, Report of Contact, dated January 24, 2007, reflects that the Veteran reported that he was divorced from his second wife on December [redacted], 2006. In a letter, dated February 9, 2007, the RO indicated that they were reducing his disability compensation, effective January 1, 2007, due to the loss of a dependent spouse. The RO instructed the Veteran to notify VA of any additional change in the number of status of his dependents. As the evidence of the Veteran's marriage to M. was not received within one year of the marriage date (December [redacted], 2007), nor was evidence of the existence of M. and R.. as dependents received within one year of VA's request, the applicable date of claim for additional compensation for dependents is February 22, 2010. See 38 C.F.R. § 3.401(b)(1) (2012). The Board has considered whether an informal claim was received or should have been inferred prior to the date of receipt of the formal claim on February 22, 2010. Prior to receipt of the February 22, 2010 claim, the evidentiary record does not contain any additional communication from the Veteran reflecting an intent to apply for the benefits sought prior to February 22, 2010. See 38 C.F.R. § 3.155. The Court has held that 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). Thus, the Board finds no claim for the additional compensation benefits sought was submitted to VA prior to February 22, 2010. The Veteran has maintained that he sent a claim for additional compensation for dependents to VA within one year of the marriage on December [redacted], 2007, which he suggests VA must have misplaced. Specifically, he argues that the effective date should be January 29, 2008 because this is the date he signed and dated a VA Form 21-686(c) listing M. as his spouse and M. and R. as his dependents. The Veteran indicated that he found a copy of the "original" VA Form 21-686 and sent it to VA in April 2010. This form was not received by the RO until April 21, 2010. (See VA Form 21-686(c), dated and signed by the Veteran on January 29, 2008 and received by the RO on April 21, 2010). Thus, he has maintained that January 29, 2008 should be the effective date of the award of M. and M. and R. as his dependents because this is when he originally sent the above-cited form to VA. The Veteran, in essence, has argued that VA did not receive his original copy of VA Form 21-686, dated January 29, 2008. The United States Court of Appeals for Veterans Claims (Court) has held that there is a presumption of regularity which holds that Governmental officials are presumed to have properly discharged their official duties. Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992) (quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15, 71 L. Ed. 131, 47 S. Ct. 1 (1926)). Clear evidence to the contrary is required to rebut the presumption of regularity. Id. While the Ashley case dealt with regularity procedures at the Board, in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the Court applied this presumption of regularity to procedures at the RO. The Board finds the Veteran's contention that VA did not receive or failed to date stamp an application that he had mailed to it in late January 2008 provides no indicia of irregularity in the administrative process at the RO, and does not constitute clear evidence to the contrary that the date stamp is proper as required to rebut the presumption of administrative regularity in both the date stamping and processing of his claim for additional compensation for dependents. Further, there is no suggestion in the record, either indicia or actions by the Veteran, suggestive of him having submitted a claim to VA in late January 2008 for additional compensation for dependents. Although the Veteran admittedly is aware that additional disability compensation is awarded if a Veteran proves that he has dependents, he did not contact VA at any time between his marriage to M. in December [redacted], 2007 and February 2010, the time he filed the claim to include M. and M. and R. as his dependents. If the Veteran had submitted evidence of his claimed dependents to VA in late January 2008, as he has maintained, or to VA at any time prior to February 2010, the Board would reasonably assume that he would have mentioned the "missing" January 2008 VA Form 21-686 in his notice of Disagreement in April 2010. In fact, at that time, the Veteran indicated that a January 2008 effective date was warranted because it was one month after his marriage to M. in December 2007. The Veteran made no reference to having submitted VA Form 21-686 to VA in late January 2008 at that time. Overall, there is only the Veteran's assertion that he submitted an application to add his spouse (M.) and stepchildren (M. and R.) as dependents in late January 2008, and case law provides that his assertion is insufficient to rebut the presumption of regularity. The record is devoid of submission of VA Form 21-686 with a date stamp prior to February 22, 2010. Lastly, the Board finds the date of commencement of the Veteran's award is March 1, 2010 since that is the start of the month after the effective date of February 22, 2010. See 38 C.F.R. §§ 3.31, 3.401(b)(4) (2012). Based on these findings, and applying the regulation that provides that the proper effective date for additional compensation for dependents is the latest of the date of qualifying disability rating (January 30, 2002), date of dependency (December [redacted], 2007), date of receipt of claim for additional compensation (February 22, 2010), and date of commencement of the Veteran's award (March 1, 2010), the first day of the calendar month after receipt of claim), the Board finds the effective date of March 1, 2010 is correct, and an earlier effective date is precluded by law and regulation. See 38 U.S.C.A. §§ 5110(f), 5111(a); 38 C.F.R. § 3.401(b). ORDER An effective date earlier than March 1, 2010 for the addition of the Veteran's spouse and stepchildren as dependents for additional compensation purposes is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs