Citation Nr: 1330399 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 09-49 747 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to additional disability compensation for the Veteran's dependent children, earlier than April 28, 2009. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The Veteran had active service in the United States Navy from February 1984 to February 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO), located in Roanoke, Virginia, which determined that the Veteran was not entitled to additional compensation for dependent children prior to April 28, 2009. FINDINGS OF FACTS 1. When the Veteran applied for VA compensation benefits in December 2003, he listed thee children, two of whom were dependents. 2. In April 2004, the RO granted service connection for several disabilities with a combined evaluation of 30 percent; notice was sent to the Veteran's last known address later that month; although the notice was not returned as undeliverable, the RO received notice in May 2004, that the Veteran's address had changed and the Veteran reports that he did not receive the April 2004 notice. 4. In March 2009, the RO informed the Veteran that he was being paid benefits as a single Veteran; in April 2009, he submitted a VA Form 21-674, Request for Approval of School Attendance for the period beginning August 30, 2007 for a child born in August 1989, and VA Form 21-686c. Declaration of Dependents in which he provided the Social Security numbers for three children born in May 1982, January 1988 and August 1989. CONCLUSIONS OF LAW 1. Entitlement to additional compensation for the Veteran's child born in May 1982 is not warranted. 38 U.S.C.A. §§ 101(4), 1115, 5110(f) (West 2002 & Supp. 2013); 38 C.F.R. § 3.209, 3.401 (2013). 2. Entitlement to additional compensation for the Veteran's child born in January 1988 is warranted from March 1, 2004 to January 7, 2006. 38 U.S.C.A. §§ 101(4), 1115, 5110(f); 38 C.F.R. § 3.209, 3.401. 3. Entitlement to additional disability compensation for his child born in August 1989, effective March 1, 2004, is warranted. 38 U.S.C.A. §§ 101(4), 1115, 5110(f); 38 C.F.R. § 3.209, 3.401. REASONS AND BASES FOR FINDINGS AND CONCLUSION This decision grants an effective date for payment of dependent benefits, effective the day following the Veteran's discharge from service and the date he was awarded qualifying compensation benefits. It is essentially a full grant of the benefits sought with regard to the Veteran's child born in August 1989. As such, further notice or assistance is not required to assist the Veteran in substantiating his claim under the Veterans Claims Assistance Act of 2000 (VCAA). The pertinent facts with regard to the Veteran's children born in May 1982 and January 1988 are not in dispute. VA's General Counsel has held that the notice and assistance requirements of the VCAA are not applicable where there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. The VCAA was not applicable where the outcome is controlled by the law, and the facts are not in dispute. Livesay v. Principi, 15 Vet App 165, 178 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000). The Veteran served in the United States Navy for twenty years. Two months prior to his retirement from service, he submitted a claim for VA benefits. VA Form 21-526, Veteran's Application for Compensation or Pension, December 23, 2003. On his application, he listed three children and reported that two were his dependents. On April 19, 2004, the RO issued a rating decision granting service connection for several disabilities with an initial combined rating of 30 percent, effective March 1, 2004. Notice was sent to the Veteran's last known address on April 27, 2004. In that letter, the Veteran was advised that he was being paid as a single veteran; and that benefits were not being paid for his two daughters and son, because he had provided incomplete information. He was advised to complete an enclosed VA Form 21-686c, "Declaration of Status of Dependents." Please fill out every blank on the form which applies to you, and make sure to include the birth dates of all dependents with Social Security numbers. There is no indication that the April 2004 notice was returned as undeliverable; however, on May 24, 2004, the RO received notice from the Veteran that his address had changed. The Veteran failed to respond to the April 2004 letter, and his dependents were not included in his VA compensation benefits. The RO received no further communication from the Veteran until December 2008, when he submitted an informal claim for additional benefits. In March 2009, the RO advised him that he had been awarded additional benefits and that he was being paid as a single veteran with no dependents. In April 2009, the Veteran forwarded to the RO a completed VA Form 21-674, Request for Approval of School Attendance for his child born in August 1989. He included the name, social security number, and date of birth. Following that submission, the RO wrote to the Veteran informing him that his disability compensation would be increased and he would be paid as a "veteran with one dependent." Later in April 2009, after receiving that notification letter, the Veteran sent to the RO VA Form 21-686c, Declaration of Status of Dependents, which listed children born in May 1982, January 1988 and August 1989, respectively. He included their dates of birth and Social Security numbers. He also submitted a statement claiming that he should receive retroactive payment of dependents benefits to the date in which benefits were originally assigned. In his substantive appeal the Veteran indicated that he did not receive the April 2004 notice letter, because he had moved and did not have a forwarding address. If a veteran is entitled to disability compensation benefits and his or her disabilities are rated not less than 30 percent, he is entitled to additional compensation for dependents. 38 U.S.C.A. § 1115 (West 2002 & Supp. 2013); 38 C.F.R. § 3.4(b)(2) (2013). The term "dependent" includes a veteran's child. 38 U.S.C.A. § 1115(1) (West 2002 & Supp. 2012); 38 C.F.R. § 3.4(b)(2) (2013). The term "child" means an unmarried person who is under the age of eighteen, and who is either a legitimate or illegitimate child of the veteran and a child who over the age of 18 and under the age of 23 who is pursuing a course of education at an accredited institution. 38 U.S.C.A. § 101(4) (West 2002); 38 C.F.R. § 3.57 (2013). VA will accept a veteran's written statement as proof of birth of a child, provided the statement contains the birth date, the birth place, the full name of the child, the relationship of the child to the veteran, and if the child does not reside with the veteran, the name and address of the person who has custody of the child. 38 C.F.R. § 3.204(a) (2013). If, however, there is a question as to veteran's relationship with the child, VA may require further proof of their relationship. 38 U.S.C.A. § 101(4); 38 C.F.R. §§ 3.204(a)(2), 3.209, 3.210 (2013). The effective date of an award of additional compensation for dependents is the latest of: (1) the date of the claim, that is, the date of the birth of the veteran's child, if evidence of the event is received within one year of the event, or the date notice is received of the dependent's existence, if evidence is received within one year of the VA's request, (2) the date dependency arises, or (3) the effective date of the qualifying disability rating, provided evidence of dependency is received within one year of notification of such rating action or the date of commencement of the veteran's award. 38 U.S.C.A. § 5110(f), (n) (West 2002); 38 C.F.R. § 3.401(b) (2013). If VA requests evidence, including the Social Security numbers for dependents, but such evidence is not furnished within a year of the notification, the claim is deemed abandoned, and no benefits may be paid or furnished based upon the application. 38 U.S.C.A. §§ 5101(c)(2), 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.204(a)(1), 3.216, 3.158(a) (2013). At no time was the Veteran entitled to payment of additional compensation for the child born in May 1982, because at all times since he began receiving compensation, the child was over the age of 18 and there is no report that the child was pursuing a course of education after reaching that age. The question with regard to the two remaining children is whether the Veteran received the April 2004 notice from the RO. There is a presumption of regularity under which it is presumed that government officials "have properly discharged their official duties". United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). Therefore, it must be presumed that VA properly discharged their official duties by properly handling claims submitted by the veteran. The presumption of regularity is not absolute; it may be rebutted by the submission of "clear evidence to the contrary". Statements made by the veteran are not the type of clear evidence to the contrary which would be sufficient to rebut the presumption of regularity. Jones v. West, 12 Vet. App. 98 (1999), Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994); Ashley v. Brown, 2 Vet. App. 62, 64 (1992). It appears that the RO properly sent notice of the April 2004 decision to the Veteran's last known address. The Veteran's report that he had moved together with the May 2004 notice to the RO serves to rebut any presumption that he actually received the notice. After becoming aware of the change of address the RO did not take any action to insure that notice was sent to the new address. The evidence indicates that the Veteran did not receive notice until the RO's awards letter in March 2009. Thereafter he took prompt action to provide the information needed to pay benefits for his dependent children. As noted, benefits are payable for dependents from the effective date of the underlying award, if necessary information is provided within one year of notice of the award. Because notice was not received until March 2009 and the Veteran provided the necessary information within one year of that notice, he is entitled to payment for eligible dependents effective from the date of the award, March 1, 2004. Hence, he would be entitled to compensation for his child born in January 1988 from March 1, 2004 to January 7, 2006, when she reached age 18 and was not reported to be pursuing a course of education. He would be entitled to additional compensation for his child born in August 1989 beginning March 1, 2004. The RO has established compensation for this child beginning April 28, 2009. ORDER Entitlement to additional disability compensation for the Veteran's dependent child born in January 1982 is denied. Entitlement to additional compensation for the Veteran's child born in January 1988 is established, effective from March 1, 2004 to January 7, 2006. Entitlement to additional compensation for the Veteran's child born in August 1989 is granted, effective March 1, 2004. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs