Citation Nr: 1329377 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 10-47 085A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware THE ISSUE Entitlement to an effective date earlier than January 1, 2009 for the payment of additional compensation for the Veteran's spouse and children. REPRESENTATION Appellant represented by: Delaware Commission of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from May 1999 to October 2004. Prior to that, the Veteran was a cadet that the U.S. Military Academy from June 1995 to May 1999. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a December 2008 decision issued by the RO that awarded the payment of additional compensation based on the Veteran having a spouse and children, beginning on January 1, 2009. The Veteran and his wife testified from the RO by way of videoconference technology at a hearing held before the undersigned Veterans Law Judge in September 2011. FINDINGS OF FACT 1. The Veteran was awarded disability compensation at a 30 percent rate, effective on October 2, 2004, in a rating decision dated on June 24, 2005. 2. The Veteran was notified that he needed to submit a VA Form 21-686c in order to receive a payment on the basis of having dependents in a letter dated on June 28, 2005. 3. The Veteran and his wife were married on March [redacted], 2004. 4. The Veteran's own child was born on September [redacted], 2004, and he adopted his wife's child in May 2007. 5. On December 11, 2008, VA received the Veteran's request for additional compensation benefits based on having a spouse and children, along with the necessary supporting documentation. CONCLUSION OF LAW The criteria for the assignment of an effective date earlier than January 1, 2009 for the payment of additional compensation benefits based on the Veteran having a spouse and children have not been met. 38 U.S.C.A. §§ 1115, 5101, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.31, 3.151, 3.114, 3.400, 3.401 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. The matter is decided by operation of law. Where, as here, a case is entirely governed by applicable law without need for further factual inquiry, the VCAA has been held inapplicable. Dela Cruz v. Principi, 15 Vet. App. 143 (2002); see also VAOPGCPREC 5-2004 (VA is not required to provide VCAA notice where there is no legal basis for the claim of where undisputed facts render the claimant ineligible for the benefit sought. The Veteran contends that he should receive an effective date prior to January 1, 2009 for the award of additional compensation for his spouse and children. He asserts that the award of the additional compensation should be made effective on October 21, 2004, the effective date of the assignment of his 30 percent rating, because he was unaware that he could receive additional payment for his dependents prior to December 2008. Alternatively, the Veteran contends that the awards for his spouse and adopted child should be effective on October 2, 2004 because he listed them on his original application for compensation received by VA on that date. Any Veteran who is entitled to compensation, and whose disability is rated not less than 30 percent, is entitled to additional compensation for his or her dependents, including a spouse and each child. 38 U.S.C.A. § 1115(1)(A). Under 38 U.S.C.A. § 5101(a), a specific claim must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See also 38 C.F.R. § 3.151(a). A claim is defined as "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 an intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. An informal claim must identify the benefit sought. 38 C.F.R. § 3.155a. Except as otherwise provide, the effective date for the award of compensation 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 arouse, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Payment for additional compensation for a dependent is effective the latest of the following dates: (1) the date of claim. This term means the following, listed in their order of applicability: (i) the date of Veteran's marriage, or birth of his or her child, or adoption of a child, if evidence of the event is received within one year of the event; otherwise, (ii) the date notice is received of the dependent's existence, if evidence is received within one year of VA request; (2) date dependency arises; (3) effective date of the qualifying disability rating provided evidence is received within one year of notification of such rating action. 38 C.F.R. § 3.401(b). Payment of monetary benefits based on original, reopened, or increased awards may not be made for any period prior to the first date of the calendar month following the month in which the dependent was added to the Veteran's award. 38 C.F.R. § 3.31. In this case, the Veteran's original compensation claim was received by VA on October 2, 2004. On the claim form, the Veteran provided the names of his spouse and stepchild. The Veteran was granted service connected for tinnitus with a 10 percent rating by a rating decision dated on November 5, 2004 and several other claims were deferred pending examinations. A rating decision dated on June 24, 2005 granted service connection for additional disabilities, providing a combined rating of 30 percent. A letter dated on June 28, 2005 was sent to the Veteran at his address of record. The letter notified him that his combined rating was 30 percent. The letter also notified the Veteran that the information he provided about his dependents was incomplete and that, before any additional benefits for his dependents could be paid, the Veteran would need to submit a completed VA Form 21-686c, "Declaration of Status of Dependents." A copy of this form was attached. The letter was not returned to VA as undeliverable. In September 2008, the Veteran telephonically filed a new claim of service connection for sleep apnea. At that time, his address of record with VA was still in Newark, Delaware. After a letter sent in connection with the new claim was returned as undeliverable, VA telephoned the Veteran in October 2008 and the Veteran provided a new address in Odessa, Delaware. On December 11, 2008, the Veteran filed a claim for the addition of his spouse and children to his 30 percent award. He provided copies of his marriage certificate, his children's birth certificates, and a certificate of adoption dated in May 2007 showing that he had adopted his stepchild. This showed that the Veteran was married on March [redacted], 2004 and that his children were born on December [redacted], 2000 and September [redacted], 2004. In December 2008, the Veteran was informed that his spouse and children would be added to his award effective on January 1, 2009 or the first day of the month following the receipt of his VA Form 21-686c. The Veteran contends that he should receive an earlier effective date because he moved in late June 2005 and did not receive the June 28, 2005 letter and accompanying dependency form. Apparently, during the move, there was a couple of weeks when the Veteran had no mail service because he did not yet have a forwarding address at his new residence and was unable to access the mailbox at his former apartment. He did not know what happened to his mail during that period. The Veteran also asserted that, since he had listed his spouse and one child on his original form claiming disability compensation, the addition of dependents to his award should have been "automatic" and that he should not have had to provide additional documentation. The Veteran claimed that he notified VA of his change of address shortly after he moved, but there is no record of a change of address in the claims file prior to the document referable to the October 2008 phone conversation. While the Veteran claims that he did not receive the June 28, 2005 letter or know that he needed to submit additional documentation in order to receive additional compensation for his dependents, the letter was mailed by VA to his address of record at the time and was not returned by the postal service. The Board notes that there is a presumption of regularity under which it is assumed that government officials have properly discharged their official duties. United States Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926); Mindenhall v. Brown, 7 Vet. App. 271 (1994) (VA need only mail notice to the last address of record for the presumption to attach). The presumption of regularity in the administrative process may be rebutted only by clear evidence to the contrary. Schoolman v. West, 12 Vet. App. 307 (1999). The Veteran has not shown that he was not properly notified of the need to send further information in order to receive additional compensation for his dependents. Additional compensation is payable to a Veteran for his dependents only if sufficient proof of dependency is received. 38 C.F.R. § 3.205; McColley v. West, 13 Vet. App. 553 (2000). The Board notes that, although the Veteran had a duty to make sure that VA had his proper mailing address in order to receive correspondence, he did not update his mailing address with VA after moving until personnel at the RO contacted him in October 2008, more than three years after the move, when mail sent to his former address was returned to VA as undeliverable. Absent evidence that the claimant notified VA of a change of address and that the notice in question sent to the Veteran at his last known address had been returned as undeliverable, VA is entitled to rely on that address. See Cross v. Brown, 9 Vet. App. 18, 19 (1996). In any event, the Board observes that VA is under no legal obligation to individually notify every potential claimant of his or her possible entitlement to VA benefits. Lyman v. Brown, 5 Vet. App. 194 (1993); Hill v. Derwinski, 2 Vat. App. 451 (1991). The specific provisions of 38 U.S.C.A. § 5110 regarding effective dates prevail over a general outreach statute such as 38 U.S.C.A. § 7722, which provides that VA should inform individuals of their potential entitlement to VA benefits when VA is aware or reasonably should be aware of such potential entitlement. See Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999). See also VAOGCPREC 17-95 ("failure by VA to provide the notice required by 38 U.S.C.A. § 7722 may not provide a basis for awarding retroactive benefits in a manner inconsistent with express statutory requirements.") In this case, it is undisputed that the Veteran did not file a claim for additional compensation for his dependents until December 11, 2008 or provide sufficient proof of dependency earlier than that date. This was not within a year of the June 2005 rating decision that established the 30 percent rating, or within a year of his marriage or the birth or adoption of either child. Thus, the effective date for the payment of the additional compensation for his dependents was properly determined to be January 1, 2009, the first day of the month following receipt of the Veteran's claim. Entitlement to an earlier effective date for the payment of benefits for his dependents based on any failure by VA to notify the Veteran of potential eligibility, or on the Veteran's alleged non-receipt of the notice is not warranted in this case. ORDER An effective date earlier than January 1, 2009 for the assignment of addition compensation based on the Veteran having a spouse and children is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs