Citation Nr: 18141997 Decision Date: 10/12/18 Archive Date: 10/12/18 DOCKET NO. 16-28 518 DATE: October 12, 2018 ORDER Entitlement to an effective date earlier than November 1, 2015, for the award of Dependency and Indemnity Compensation (DIC) benefits is denied. FINDING OF FACT VA first received the VA Form 21-534EZ, Application for DIC, Death Pension and Accrued benefits on October 7, 2015. Although the VA Form 21-534EZ was dated September 22, 2014, VA did not receive this form until October 7, 2015. CONCLUSION OF LAW The criteria for assignment of an effective date earlier than November 1, 2015, for the award of DIC benefits have not been met. 38 U.S.C. §§ 1310, 5107, 5110 (2012); 38 C.F.R. §§ 3.1, 3.5, 3.50, 3.205, 3.206, 3.312, 3.400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1966 to May 1968. He died in August 2014. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Applicable Law If a claimant files an application for DIC benefits within one year after the veteran’s death, then the effective date is the first day of the month in which the veteran died. 38 U.S.C. § 5110(d)(1). If no such application is filed or could be construed to have been filed within one year after the veteran’s death, then the effective date will be the date of receipt of the claim. 38 U.S.C. § 5110(d)(1); 38 C.F.R. § 3.400(c)(2). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. §5101(a); 38 C.F.R. § 3.151 Where evidence requested in connection with an original claim is not furnished within 1 year after the date of request, the claim will be considered abandoned. After the expiration of one-year, further action will not be taken unless a new claim is received. Should the right to benefits be finally established, DIC based on such evidence shall commence not earlier than the date of filing the new claim. 38 C.F.R. § 3.158(a). In relevant part, “date of receipt” means the date on which a claim, information or evidence was received in the Department of Veterans Affairs. However, the Under Secretary for Benefits may establish, by notice published in the Federal Register, exceptions to this rule, using factors such as postmark or the date the claimant signed the correspondence, when he or she determines that a natural or man-made interference with the normal channels through which the Veterans Benefits Administration ordinarily receives correspondence has resulted in one or more Veterans Benefits Administration offices experiencing extended delays in receipt of claims, information, or evidence from claimants served by the affected office or offices to an extent that, if not addressed, would adversely affect such claimants through no fault of their own. 38 C.F.R. § 3.1(r). A response postmarked prior to expiration of the applicable time limit will be accepted as having been timely filed. If the postmark is not of record, the postmark date will be presumed to be five days prior to the day of receipt of the document by VA. In calculating this 5-day period, Saturdays, Sundays and legal holidays will be excluded. In computing the time limit for filing a written document, the first day of the specified period will be excluded and the last day included. Where the time limit would expire on a Saturday, Sunday or legal holiday, the next succeeding workday will be included in the computation. 38 C.F.R. § 20.305(a), (b). In addition to this statutory mailbox rule, there is a common law mailbox rule. Under the common law mailbox rule, if a letter properly directed is proved to have been either put into the post office or delivered to the postman, it is presumed, from the known course of business in the post office department, that it reached its destination at the regular time, and was received by the person to whom it was addressed. Rios v. Nicholson, 490 F.3d 928, 930-31 (Fed. Cir. 2007). In Rios v. Peake, 21 Vet. App. 481 (2007) (Rios II), the Court noted that the presumption of receipt permitted under the common law mailbox rule was not invoked lightly. “It requires proof of mailing, such as an independent proof of a postmark, a dated receipt, or evidence of mailing apart from a party’s own self-serving testimony.” Id. at 482-83. A “presumption of regularity” supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties. Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992); Fithian v. Shinseki, 24 Vet. App. 146, 150 (2010); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (applying this presumption of regularity to procedures at the RO). Analysis The appellant maintains that an earlier effective date should be assigned because she submitted an application for DIC benefits in September 2014 with the Georgia Department of Veterans Services, which was electronically submitted to VA. The appellant reported she submitted another application in April 2015. After being told this information was not received by VA, the appellant filed again in October 2015. A copy of the VA Form 21-534EZ was not included VA received the application for DIC benefits in October 2015. In a November 2015 rating decision, the RO granted service connection for the Veteran’s cause of death based on the VA 21-534 Application for DIC benefits received in October 2015. The effective date for DIC benefits was November 1, 2015. The Veteran’s contentions do not contain evidence, such as a date stamp, indicating receipt of the application for DIC benefits. Without evidence to the contrary and with the presumption of regularity of the official acts of public officers, the Board must conclude that any mail sent to the RO by the appellant would have been received and associated with the claims file. See Marciniak v. Brown, 10 Vet. App. 198, 200 (1998). Thus, as stated above, the Board finds the appellant’s assertion that she sent VA the Form 21-534EZ in September 2014 and April 2015, without any supporting objective evidence, insufficient to rebut the presumption of regularity in the administrative process. There is also no indication that the RO received this paperwork prior to October 2015, and then lost it, as she suggests might have happened. VA also may not construe the correspondence from the appellant in June 2015 as raising an informal claim. VA changed its regulations, and stopped accepting informal claims after March 24, 2015. See 79 Fed. Reg. 57660, 57664 (Sept. 25, 2014). Accordingly, the lack of VA’s receipt of the Form 21-534EZ until October 2015, more than a year after the Veteran’s death in August 2015, requires that pursuant to 38 C.F.R. § 3.400(c)(2), the DIC Benefits from the Veteran’s death must be based on the date of receipt of claim rather than the first day of the month in which the Veteran’s death occurred. VA acknowledges the appellant has submitted a letter from VA dated September 30, 2014 regarding the receipt of an application for benefits. However, the appellant filed an Application for Burial Benefits that was received by VA on September 5, 2014. It is unclear from the VA letter submitted by the appellant if the benefits discussed in the VA letter dated September 30, 2014 related to the Application for Burial Benefits that was received by VA on September 5, 2014, or if it related to the Application for DIC Benefits dated September 22, 2014, that was not received by VA. While VA acknowledges the appellant’s contentions that an error on the part of VA was responsible for the lack of receipt for the VA Form 21-534EZ, Application for DIC, Death Pension and Accrued benefits, she has not submitted evidence sufficient to rebut the presumption of regularity. In the absence of clear evidence to the contrary, it may be presumed that the RO properly discharged their official duties. The presumption of regularity dictates that, if VA received the correspondence including an application for DIC benefits, it would have associated it with the claims file and acted on it in some manner. Fithian v. Shinseki, 24 Vet. App. 146, 151 (2010). Generally, a claimant’s own statements that she mailed a letter to VA or gave to a service organization to submit to VA on her behalf are not sufficient to establish the presumption of receipt under the common law mailbox rule. Id. In light of the foregoing, the Board is unable to assign an effective date for the award of DIC benefits, even after resolving all reasonable doubt in the appellant’s favor. The law requires that the effective date be the date of claim or the date entitlement arose, whichever is later. Because the later of these two dates in this case is the date the appellant filed a second claim for DIC benefits, there is no legal basis to assign an effective date earlier than that date. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Consequently, even after resolving all reasonable doubt in the appellant’s favor, the appeal for an earlier effective date for the award of DIC benefits must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Keogh, Associate Counsel