Citation Nr: 1803192 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 12-25 530 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an effective date prior to November 3, 2010 for the payment of dependency benefits for the Veteran's current spouse. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Chad Johnson, Counsel INTRODUCTION The Veteran had active service from November 1964 to June 1985. This matter comes to the Board of Veterans' Appeals (Board) from a May 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas relating to the Veteran's entitlement to dependency benefits. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran divorced his former spouse, J. L. E., on December 1, 2006. 2. The Veteran married his current spouse, R. J. E., on January 12, 2007. 3. VA did not receive notice of the Veteran's divorce from J. L. E. and marriage to R. J. E. prior to November 3, 2010. CONCLUSION OF LAW The criteria for an effective date prior to November 3, 2010 for the payment of dependency benefits for the Veteran's current spouse have not been met. 38 U.S.C. §§ 1115, 5110(f) (2012); 38 C.F.R. §§ 3.4, 3.31, 3.57, 3.401 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is in receipt of a combined 50 percent disability rating, had previously been receiving additional compensation for his dependent-spouse under 38 U.S.C. § 1115 (2012). See 38 C.F.R. § 3.4(b)(2) (2017). The purpose of the statute is to defray the costs of supporting the Veteran's dependents when a service-connected disability is of a certain level hindering the Veteran's employment abilities. See Sharp v. Shinseki, 23 Vet. App. 267, 272 (2009). The record documents that in February 2002, the Veteran was notified that his VA compensation included an additional amount for his dependent spouse and that he was responsible for reporting any changes regarding his dependents to VA; shortly thereafter, the Veteran submitted VA Form 21-0538, Status of Dependents Questionnaire, which documented his current marriage to J. L. E., without other claimed dependents. In September 2010, VA notified the Veteran regarding a proposed reduction of his compensation benefits because the Veteran had not provided updated dependency information since February 2002. On November 3, 2010, the Veteran submitted a statement asserting that he had submitted the requested dependency information at least six months previously; he further stated that he had only had a single dependent spouse since 2002. His concurrent VA Form 21-686c, Declaration of Status of Dependents, reported that he had divorced his former spouse, J. L. E., on December 1, 2006, and that he had married his current spouse, R. J. E., on January 12, 2007. The RO responded with the May 2011 decision on appeal, informing the Veteran that additional benefits being provided by VA for his former spouse, J. L. E., had been removed from his monthly award amount effective December 1, 2006, the date of his divorce. Payments for his current spouse, R. J. E., were made effective November 3, 2010, the date that VA received notice of his change in dependents. As a result of this adjustment, an overpayment of dependency benefits in the amount of $3,411.00 was created for the period between December 1, 2006 and November 3, 2010. The Veteran's June 2011 NOD contends that the effective date of payment of additional benefits for his current spouse , R. J. E., should have been January 12, 2007, the date of their marriage. Later that same month, the Veteran provided a copy of his January 12, 2007 marriage certificate to R. J. E. and asserted that he had provided proof of dependency information to VA twice prior to the September 2010 notice regarding a proposed reduction in his benefits. He further argued that his dependency benefits should be based upon whether or not he had a legal dependent, and not upon whether VA received notice of his change in spouse, which he essentially argues was not a "change" in his marital status for dependency benefits purposes. In September 2011, the Veteran reported that he had provided notification of his change in spouse in 2007, and again when the information was requested by the Houston RO, prior to the September 2010 notice which proposed to reduce his benefits; however, due to error on the part of the Houston RO or the U.S. Postal Service, such notification was not received by VA until November 2010. The Veteran's September 2012 VA Form 9 substantive appeal included an attached statement wherein the Veteran again reported that he had previously provided notice of his change in dependent spouse to VA in January or February 2007. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a) (2012). The statute and regulations specifically provide that an award of additional compensation on account of dependents based on the establishment of a qualifying disability rating shall be payable from the effective date of such rating, but only if proof of dependents is received within one year from the date of notification of such rating action. 38 U.S.C. § 5110(f); 38 C.F.R. § 3.401(b)(3) (2017). The statute and regulation further provide that the effective date of the award of any benefit or any increase therein by reason of marriage shall be the date of such event, if proof of such event is received within one year from the date of marriage. 38 U.S.C. § 5110(n); 38 C.F.R. § 3.401(b)(1)(i). In cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The unavailability of records, however, does not lower the legal standard for substantiating a claim, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). Significantly, however, despite the Veteran's assertions that either VA or the U.S. Postal Service lost his previously submitted notification regarding his change in dependent spouse, the record does not otherwise document that such information was submitted or lost as reported. As such, the Veteran's assertions in this regard are insufficient to overcome the presumption of regularity. See Ashley v. Derwinski, 2 Vet. App. 62 (1992) (regarding the presumption of administrative regularity that public officers have properly discharged their official duties in absence of clear evidence to the contrary); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (regarding the applicability of the presumption of administrative regularity to RO actions). While the presumption of regularity may be rebutted by the submission of clear evidence to the contrary (such as confirmation by the U.S. Postal Service returning mail as undeliverable), no such evidence has been submitted in support of the Veteran's claim. To the extent that the Veteran contends that notice of his divorce and remarriage is irrelevant as he was nonetheless married throughout the period at issue, the Board is sympathetic; however, VA regulations controlling the assignment of effective dates are clear, and in the absence of a finding that the Veteran provided proof of his current dependent spouse within one year of their January 12, 2007 marriage, the effective date remains the date that VA first received notice of their marriage on November 3, 2010. See 38 U.S.C. § 5110(n); 38 C.F.R. § 3.401(b)(1)(i). Unfortunately, the Board is not empowered to grant equitable relief. See Moffitt v. Brown, 10 Vet. App. 214, 225 (1997). Therefore, as the preponderance of evidence weighs against the Veteran's claim of entitlement to an effective date prior to November 3, 2010 for the payment of dependency benefits for the Veteran's current spouse, there is no reasonable doubt to be resolved, and the claim must be denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Finally, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions and the Veteran has not specifically asserted otherwise, aside from his unsupported assertions regarding lost mailings. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). ORDER An effective date prior to November 3, 2010 for the payment of dependency benefits for the Veteran's current spouse is denied. ______________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs