Citation Nr: 18142184 Decision Date: 10/15/18 Archive Date: 10/12/18 DOCKET NO. 16-23 518 DATE: October 15, 2018 ORDER Entitlement to an effective date earlier than October 19, 2015 for the award of spousal dependency benefits is denied. FINDING OF FACT VA did not receive notice of the Veteran’s current marriage within one year of September 28, 2013 and VA did not receive notice of the existence of the Veteran’s current spouse prior to October 19, 2015. CONCLUSION OF LAW The criteria for an effective date prior to October 19, 2015 for the award of spousal dependency benefits have not been met. 38 U.S.C. §§ 1115, 5110 (2012); 38 C.F.R. §§ 3.4, 3.31, 3.401 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the U.S. Marine Corps from March 1988 to March 1995. He had additional service from March 1995 to March 1998. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a January 2016 administrative decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). Entitlement to an effective date earlier than October 19, 2015 for the award of spousal dependency benefits. A veteran who is in receipt of disability compensation of 30 percent or more is entitled to an additional allowance for dependents. 38 U.S.C. § 1115. The enabling regulation provides the effective date for additional compensation for dependents will be the latest of the following dates: (1) date of claim; (2) date dependency arises; (3) effective date of the qualifying disability rating provided evidence of dependency is received within one year of notification of such rating action; (4) date of commencement of veteran's award. 38 C.F.R. § 3.401 (b). Importantly, under this regulation, date of claim means date of the Veteran's marriage if evidence of the event is received within one year, otherwise the date of claim is the date VA receives notice of the dependent’s existence (so long as evidence is received within one year of a request for information by VA). Id. Further, the commencement of payment for additional compensation for a dependent begins the first day of the month following the effective date. 38 C.F.R. § 3.31. The Veteran’s combined disability evaluation for compensation has been 30 percent or greater since October 2006. Since that time, he has been eligible to receive additional benefits for dependents, when VA is properly notified of such a claim. Here, the Veteran seeks an effective date prior to October 19, 2015 for additional disability compensation benefits based on the dependency of his current spouse. There is no dispute that the Veteran married his current spouse on September 28, 2013. The Veteran asserted, in his May 2016 VA form 9 that he “turned in” a copy of his marriage license at the Sheridan, Wyoming VA Medical Center in October 2013. He made similar assertions in a January 2016 and February 2016 phone calls to the RO. VA records do not reflect such a submission or other notification about the marriage at that time. Rather, the record reflects a September 2015 VA letter was sent to the Veteran seeking information about his dependents. On October 19, 2015 the Veteran provided a completed Status of Dependents Questionnaire which identified his current spouse. In February 2016, a copy of his marriage license, showing he was married on September 28, 2013, was submitted. The Board is cognizant of the Veteran’s argument that he did, indeed notify VA of his marriage, however, the United States Court of Appeals for Veterans Claims (Court) has ruled that there is a “presumption of regularity” under which it is presumed that government officials have properly discharged their official duties. Clear evidence to the contrary is required to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App. 307 (1992), (citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)). The Court has also specifically held that a statement by a claimant, standing alone, is not sufficient to rebut the presumption of regularity in VA operations. Id. While Ashley dealt with regularity of procedures at the Board, in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the Court applied this presumption of regularity to procedures at the RO. Under Mindenhall, there is a presumption of regularity of the administrative process when there is a lack of clear evidence to the contrary. In the instant case, the record does not reflect the Veteran reported his current marriage prior returning a VA questionnaire on October 19, 2015. The only indications the evidence was provided earlier are the Veteran’s statements that he submitted information in October 2013. The Board notes that the Veteran previously received compensation based on the dependency of a prior spouse and adopted children. The claims file reflects that in August 2007, VA notified the Veteran that he was receiving benefits as a single Veteran. Immediately following this notification, the Veteran submitted a marriage license and adoption decrees to establish his entitlement to increased compensation. The Board further notes the Veteran was divorced from his prior spouse in June 2009. While not at issue here, the Veteran also claims he promptly notified VA of the divorce. Yet, VA records do not reflect information about this divorce until the Veteran provided an additional Status of Dependents Questionnaire in January 2016. The Veteran’s statements that he provided information about his current marriage in October 2013, standing alone, are not the clear evidence necessary to rebut the presumption of regularity. Thus, the Board finds that VA first received notice of the Veteran’s current marriage on October 19, 2015. The appropriate date to commence payment of increased compensation based on this dependency was November 1, 2015, the first day of the month following the effective date. See 38 C.F.R. § 3.31, 3.401(b). Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeanne Celtnieks, Associate Counsel