Citation Nr: 1753822 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 04-40 267 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an effective date earlier than September 4, 2002 for the grant of additional compensation based on a dependent spouse, for substitution purposes. (A decision will be issued to address other claims in appellate status and currently before the Board, namely entitlement to service connection for the Veteran's cause of death and entitlement to accrued benefits. The Board notes that the issue on appeal of entitlement to reimbursement for private dental expenses incurred in 2003 is currently pending development with the AOJ, and therefore has not been transferred to the Board and is not before the Board at this time.) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. J. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1950 to September 1951. The Veteran died in May 2009, and the appellant is the Veteran's surviving spouse. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2003 determination by a Regional Office (RO) of the Department of Veterans Affairs (VA). All records on the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) have been reviewed. In June 2007, the Board denied the claim on appeal. The appellant then appealed the Board's June 2007 decision. In a February 2009 Joint Motion for Remand (JMR) by the U.S. Court of Appeals for Veterans Claims (Court), the Court vacated the Board's denial of the claim and remanded the matter on appeal to the Board for readjudication consistent with the JMR. Due to the Veteran's May 2009 death, the Board dismissed the Veteran's claim in an April 2010 decision. The Board's dismissal of the Veteran's appeal did not affect the appellant's right to file a request to be substituted as the appellant for purposes of processing the Veteran's claim to completion. Thus, the Board remanded the matter regarding substitution in July 2014. The AOJ, in July 2014, determined that the appellant should be substituted into the Veteran's appeal pursuant to her June 2009 application. The RO also found that the docket number pertaining to the Veteran's original appeal (noted above) should apply to this now-substituted claim. In June 2016, the Board remanded the claim for further development, and the case is again before the Board for further appellate proceedings. The appellant testified before Veteran Law Judge Michael A. Pappas in a June 2015 video conference hearing regarding this issue on appeal. The transcript of the June 2015 hearing is associated with the claims file. The Board notes that though the appellant testified before another Veteran Law Judge in a December 2012 video conference hearing, no new or relevant evidence was presented at that hearing regarding this issue on appeal. Thus, it is not necessary for this decision to be signed by a panel of three VLJs. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (20). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The VA did not discharge its official duty to send notice to the Veteran as to the relevant change in law that became effective on October 1, 1978, which allowed for additional compensation for a dependent for a Veteran who is evaluated for service-connected disabilities at 30 percent or more. 2. The Veteran demonstrated an intent to seek the maximum benefit allowed under the relevant change in law that became effective on October 1, 1978; thus, the Veteran's claim for additional compensation based on a dependent was reasonably raised on October 1, 1978, which is also the date that entitlement to such benefit arose. CONCLUSION OF LAW The criteria for an earlier effective date of October 1, 1978 for the grant of additional compensation based on a dependent have been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (201). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board is granting the claim in full under the law, and thus discussion regarding the duties to notify and assist, or with regard to compliance with prior Board remand, is not necessary in this case, as any error thereof is harmless error and is not prejudicial to the appellant. The appellant contends that additional compensation based on her being the Veteran's dependent spouse should have been paid prior to September 4, 2002. Specifically, the appellant contends that the grant of additional compensation should be effective on October 1, 1978, which is the effective date for a pertinent amendment to 38 C.F.R. § 3.4(b)(2). Prior to October 1, 1978, this regulation provided that entitlement to additional compensation for a dependent only applied to Veterans with service-connected disabilities rated at 50 percent or more. The revised regulation allowed for additional compensation for a Veteran with service-connected disabilities rated at 30 percent or more. At all times relevant to this claim on appeal, the Veteran had disabilities rated at 40 percent. See e.g., May 1960 rating decision. Further, at all times relevant to this claim on appeal, the Veteran and the appellant were married. See e.g., marriage certificate (showing that they married in 1960). In September 1960, the Veteran submitted a Form 686c, Declaration of Marital Status, along with a copy of his marriage certificate, thus timely informing VA that he married the appellant in 1960. In September 2003, the AOJ, in substance, notified the Veteran of the October 1, 1978 change to 38 C.F.R. § 3.4(b)(2) regarding additional benefits for a dependent and requested the Veteran to file a VA Form 21-646c. The Veteran promptly submitted his completed form in September 2003, showing that the appellant is his dependent spouse. The Board acknowledges the Veteran's argument in his December 2006 letter that the effective date for the grant of additional compensation for his dependent spouse should be in 1960, the date of marriage, instead of 1978. However, this argument is without merit based on the law, as the Veteran was not entitled to additional compensation based on a dependent spouse based on the law that was in effect prior to October 1, 1978 (i.e., the requisite combined 50 percent rating). Generally, the effective date of an evaluation and award of compensation will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. A claim or an application to reopen a previously denied claim may be filed by paper submission, electronic filing, or phone call. See 38 C.F.R. § 3.155(b)(1) (providing that an intent to file a claim can be submitted by way of saved electronic application, written intent on a prescribed intent to file a claim form, or oral intent communication to designated VA personnel and recorded in writing); see also Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004) (VA has the responsibility of determining when an informal claim has been filed). The law provides that a submission can only be read as a claim for benefits if the submission demonstrates the claimant's intent to seek such benefits. See e.g., Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); Criswell v. Nicholson, 20 Vet. App. 501 (2006); Brannon v. West, 12 Vet. App. 32, 35 (1998). Here, the claim on appeal turns on whether the Veteran was provided proper notice as to the above-discussed change in law regarding the availability of additional compensation for a dependent spouse. The September 2003 VA letter reflects that the AOJ contended that in December 1978, the Veteran was notified of a new law that allowed Veterans who were 30 percent disabled to receive additional compensation for dependents and that this letter informed the Veteran that he had until October 1, 1979 to claim these additional benefits, and that the Veteran did not respond to that notification. The claims file does not show any such letter was sent to Veteran in December 1978, and the Veteran and the appellant have consistently reported that they did not receive any such letter. See e.g., September 2003 notice of disagreement (Veteran reported that he did not receive any notice letter in December 1978, that no such letter is in his file, and that if he had received the letter, he would have responded). The first question is whether VA properly discharged their official duty to send notice to Veterans regarding the October 1978 change in law. There is a presumption of administrative regularity under which it is presumed that government officials have properly discharged their official duties, including in mailing notice. To rebut this presumption, the appellant, in addition to asserting no receipt, bears the burden of producing clear evidence that VA did not follow its regular mailing practices or that its practices were not regular. Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992). Absent the production of such clear evidence, delivery is proven. If, on the other hand, clear evidence is presented to rebut the presumption of regularity, the burden then shifts to VA to establish proper mailing of notice in accordance with the applicable case law. See Baxter v. Principi, 17 Vet. App. 407, 410 (2004). Whether clear evidence exists to rebut the presumption of administrative regularity is a question of law. An assertion of no receipt, standing alone, does not rebut the presumption of regularity in VA's mailing process. Jones v. West, 12 Vet. App. 98, 102 (1998). Instead, the clear evidence requirement mandates not only a declaration by the appellant of no receipt, but additional evidence to corroborate the appellant's declaration, such as an addressing error by VA that was consequential to delivery, as not all address errors rise to the level of clear evidence to rebut the presumption of administrative regularity in the mailing of notice. See Santoro v. Principi, 274 F.3d 1366, 1370 (Fed. Cir. 2001) (in holding the use of wrong zip code inconsequential to delivery, the Court stated that "an address containing errors inconsequential to delivery is still proper"); Jones, 12 Vet. App. at 98 (holding the failure to include room number on street address to which VA sent documents and notice to the claimant that his disability compensation would be suspended, was not alone sufficient to overcome the presumption of regularity where record showed no evidence that the notice was returned as undeliverable); Clark v. Nicholson, 21 Vet. App. 130, 133 (2007) (holding that a Veteran did not present clear evidence to rebut presumption of regularity that applies to VA mailings when he asserted that he did not receive notice of an unfavorable RO decision due to VA's failure to include a "NE" post directional designator in his street address, as such omission was inconsequential to delivery). Here, in addition to the appellant's assertion of non-receipt, the claims file shows no record that any notice of the relevant change in law was sent to the Veteran at all in December 1978. Essentially, the AOJ has asserted that the notice letter was sent to the Veteran in December 1978 because there was a form letter that was supposed to be sent in December 1978. There is a copy of the referenced form letter in the record, but there is no indication that any such form letter was sent to the Veteran in December 1978 to any address. The Board finds that this is clear evidence to show that VA did not follow its regular mailing practice here. Thus, the presumption of administrative regularity is rebutted. VA has not shown any evidence to support that there was proper mailing of notice in accordance with the applicable case law. Indeed, there is no evidence to support that the notice letter was sent to the Veteran at any address. (The Board notes that therefore the question of whether the Veteran's address of record in December 1978 was correct is not relevant in this case.) The Board concludes that the Veteran did not receive proper notice as to the change of law allowing for additional compensation based on a dependent spouse. The next question is therefore when the Veteran submitted a claim for additional compensation based on a dependent, or, in other words, whether VA received an indication from the Veteran that he intended to seek benefits for any such benefit prior to September 4, 2002. The Board notes that in its June 2007 decision, which the Court has vacated, the Board erroneously applied Morris v. Derwinski, 1 Vet. App. 260 (1991), which held that ignorance cannot be used as an excuse for failure to follow a promulgated regulation. In Morris, the Court noted that the Supreme Court of the United States had held that persons dealing with the Government were charged with knowledge of Federal statutes and lawfully promulgated agency regulations, regardless of actual knowledge or hardship resulting from innocent ignorance. Morris, 1 Vet. App. at 265. However, this case is distinguishable from the facts in Morris. In Morris, the Veteran was on notice as to what was expected from him in order to get to his claim adjudication process moving. VA had provided him notice that he must submit additional evidence to keep his claim moving, and in that case the Veteran contended that he did not know that by not submitting such evidence, his claim would be abandoned. The Court in Morris, however, expressly distinguished the facts in Morris from Akles v. Derwinski, 1 Vet. App. 118 (1991), where the Court found that the Secretary is under a duty to consider every benefit to which that claimant may be entitled in claims for increased compensation. Here, the case involves a potential claim for increased compensation, and in claims for increased compensation, the assumption is that the Veteran intends seek the maximum benefit allowed under law, unless there is a clear demonstration of an intent otherwise. Here, the Veteran would not have known about the new October 1978 revision allowing for additional compensation for dependents allowed under law unless VA provided him proper notice thereof. Further, based on the fact that the Veteran promptly submitted his VA Form 646c after VA's September 2003 letter first notifying him as to the availability of such additional compensation for dependents, the Veteran has demonstrated an intent to seek such available additional benefits, and the Board finds that is reasonable to conclude that if the Veteran had been properly notified as to the October 1978 change in law, he would have timely submitted a claim for additional compensation based on dependent spouse. This is not an "exercise of prognostication" as to the Veteran's intent, but rather a reasonable conclusion regarding the presence of an intent to seek increased benefits based upon the Veteran's consistent and prompt submission of requested evidence to support his claim for increase during his lifetime. See Myers v. Derwinski, 1 Vet. App. 127, 130 (1991). Based on the above facts, the Board finds that the date that entitlement to additional compensation based on a dependent spouse arose, October 1, 1978, is also the date that the Veteran's claim for such benefits arose. This claim remained pending until the AOJ addressed this matter in the September 2003 determination. Accordingly, an earlier effective date of October 1, 1978, the date of the claim and the date that entitlement to the benefit arose, is warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an earlier effective date of October 1, 1978 for the grant of additional compensation based on a dependent, for substitution purposes, is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs