Citation Nr: 18154963 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-53 695 DATE: December 4, 2018 ORDER Entitlement an effective date prior to October 1, 2011, for payments of a dependency allowance for the Veteran’s spouse, is denied. FINDING OF FACT 1. In an April 1989 notification letter, VA informed the Veteran he was being awarded disability compensation based on combined 30 percent rating and additional benefits could be paid if he submitted a completed VA-Form 21-686c, “Declaration of Status of Dependents” and a certified copy of his marriage certificate. The record does not show that a response to this letter was received within one year of notification. 2. On September 15, 2011, the Veteran filed claims for increased rating and service connection, and his claims were adjudicated in an August 2012 rating decision. In an August 2012 notification letter, he was advised that he was being paid as a single veteran with no dependent and that before he could be paid additional benefits for his dependent(s), he needed to send in a completed VA-Form 21-686c. 3. On September 10, 2012, the Veteran submitted a VA Form 21-686c, and after further requests, he provided the date and place of marriage to his dependent spouse. 4. A September 2014 administrative decision notified the Veteran that additional compensation was added for his dependent spouse, effective October 1, 2011, the first day of the month following the effective date of his September 15, 2011 claim. CONCLUSION OF LAW The criteria for an effective date earlier than October 1, 2011, for payments of a dependency allowance for the Veteran’s spouse, have not been met. 38 U.S.C. §§ 1115, 5110, 5111(a) (2012); 38 C.F.R. §§ 3.3, 3.4, 3.31, 3.204, 3.217, 3.400, 3.401 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from March 1963 to March 1986. Entitlement an earlier effective date for payment of dependency allowance for the Veteran’s spouse Veterans who have service-connected disabilities rated as 30 percent disabling and higher may be entitled to additional compensation for dependents. 38 U.S.C. § 1115 (2012); 38 C.F.R. § 3.4 (b)(2) (2018). When determining the effective date for an award of additional compensation for dependents, the effective date will be the last of the following dates: (1) the date of claim; (2) the date the dependency arises; (3) effective date of the qualifying disability rating provided evidence of dependency is received within a year of notification of such rating action; or (4) date of commencement of the service member’s award. 38 C.F.R. § 3.401 (b) (2018). The “date of claim” for additional compensation for dependents is the date of the Veteran’s marriage or birth/adoption of a child, if evidence of the event is received within a year of the event; otherwise, the date notice is received of the dependent’s existence, if evidence is received within a year of notification of such rating action. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.401. The earliest date that an additional award of compensation for dependents can occur is the first day of the calendar month following the month in which the award became effective. 38 C.F.R. § 3.31 (2018). If a claimant’s application for a benefit under the laws administered by the Secretary is incomplete, the Secretary shall notify the claimant and the claimant’s representative, if any, of the information necessary to complete the application. 38 U.S.C. § 5102 (b) (2012). If the requested information necessary to complete an application is not received by the Secretary within one year from the date such notice is sent, no benefit may be paid or furnished by reason of the claimant’s application. 38 U.S.C. § 5102 (c) (2012). In Sharp v. Shinseki, 23 Vet. App. 267, 276 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the effective date for additional compensation for dependents shall be the same date as the rating decision giving rise to such entitlement, irrespective of any previous grant of section 1115 benefits, if proof of dependents is submitted within one year of notice of the rating action. While the Court held that there can be “multiple rating decisions that establish entitlement to additional dependency compensation,” the Court still required that proof of dependent status be submitted within one year of notice of rating action. Sharp, 23 Vet. App. at 276. Dependent compensation benefits were ultimately awarded to the appellant in Sharp on the effective date of the applicable rating increase. Id. VA will accept, for purposes of determining entitlement to benefits under laws administered by VA, the statement of a claimant as proof of marriage, dissolution of a marriage, birth of a child, or death of a dependent, provided that the statement contains: the date (month and year) and place of the event; the full name and relationship of the other person to the claimant; and the social security number of the other person. 38 U.S.C. § 5124 (2012); 38 C.F.R. § 3.204 (2018). Shortly after his separation from service, in April 1986, the Veteran submitted a VA-Form 21-526, “Veterans Application for Compensation or Pension,” in which he noted that he had divorced and remarried his current spouse. His current marriage began on February 12, 1974 in San Diego, and he included his spouse’s name and her date of birth. The form advised the Veteran that he needed to furnish VA with a certified copy of a marriage record. In a handwritten note on his VA-Form 21-526, he indicated that he would provide further information about his present marriage at a later date. This document reads as “Best Copy” in the claims folder. An April 1989 rating decision granted increased rating for left knee and left foot disabilities, and showed that the Veteran had a combined rating of 30 percent based on increased ratings. In an April 11, 1989 notification letter, the Veteran was advised that he had a combined rating of 30 percent as of April 1, 1986, and he was eligible for additional compensation for dependent spouse, as of that date if he provided VA with a completed VA Form 21-686c, Declaration of Marital Status and certified copy of a marriage certificate. The Veteran contends that he mailed the completed VA Form 21-686c and requested document of his marriage to VA a few days following receipt of the April 1989 notification letter. However, the record does not show that those documents were received within a year of the April 1989 notification letter. Rather, a review of the claims folder shows that declaration of dependent status, VA Form 21-686c, was not received until September 10, 2012, following the initiation, development, adjudication, and notification of determination of his claim submitted on September 15, 2011. In a September 2014 administrative decision, the RO added the Veteran’s spouse to his award effective from October 1, 2011. The Veteran has argued that he was not aware that he was not being paid for his dependent spouse until 2012. He noted that he had sent in the proper forms to add his wife as his dependent after his receipt of the April 1989 rating decision, and that he felt he deserved to receive back pay to the April 1989 notification. See October 2014 statement in support of the case, attached to notice of disagreement. After consideration of the facts of the case, the Board finds that the assignment of the effective date of October 1, 2011 for grant of additional VA compensation for the Veteran’s dependent spouse was proper. The Veteran first became eligible for dependency benefits April 1, 1986, the date his combined disability rating was not less than 30 percent. See 38 U.S.C. § 1115 (2); 38 C.F.R. § 3.4 (b)(2). However, the record does not show that VA received his VA Form 21-686c and other information to verify his marriage until September 2012. Although the Veteran had earlier submitted information about his marriage, including date and place of the marriage and the name and birthdate of his spouse on his April 1968 VA compensation application, he did not meet the threshold combined rating requirement in order to be entitled to additional compensation for a spouse until the April 1989 rating decision which assigned a 30 percent rating, effective April 1, 1986. 38 C.F.R. § 3.4 (b)(2). In the April 1989 notification letter, the RO asked the Veteran to submit additional information pertaining to his current dependent. He was specifically asked to submit a completed VA Form 21-686c, Declaration of Status of Dependents and certified copy of marriage certificate. However, the record does not show that such information was received by VA within one year of the date of notice. The Veteran contends that the effective date for the receipt of compensation for his dependent spouse should be in April 1989, the date of he claims to have first submitted a completed VA Form 21-686c and certified copy of a marriage certificate. There is a presumption of regularity under which it is presumed that government officials “have properly discharged their official duties.” See United States v. Chemical Foundation, Inc., 272 U. S. 1, 14-15, 47 S. Ct. 1 (1926). In Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992), the Court found that the presumption of regularity applied to VA. The Court found that there is a presumption of regularity under which it is presumed that government officials have properly discharged their official duties. The presumption is not absolute; it may be rebutted by the submission of clear evidence to the contrary. Once clear evidence is submitted, VA is no longer entitled to the benefit of the presumption and the burden shifts to VA to establish that a government official properly discharged his or her official duties. Applying the presumption of regularity to VA, there is no clear evidence to the contrary showing that VA received the requested documentation in April 1989 or within a year of the April 1989 notification letter. The Veteran has not submitted any evidence dated in April 1989 or within a year thereafter, such as a return receipt, showing that he mailed the requested VA Form 21-686c and copy of marriage certificate to VA at that time. There is not clear evidence showing that VA received the request documentation for additional compensation for dependent spouse in April 1989 or within a year of that notification letter. Accordingly, the Board finds that the weight of evidence shows that evidence was not received by VA within one year of the April 1989 notification letter. Thus, even though the Veteran has been in receipt of the qualifying disability rating under 38 C.F.R. § 3.401 (b)(3) since April 1986, VA did not receive requested information from the Veteran verifying dependent status, within a year of notification of the April 1989 rating action awarding the 30 percent rating, which was needed in order to award the Veteran the additional compensation since April 1986, or prior to October 1, 2011. The Secretary has authority to prescribe the nature and extent of the proof required in order to establish a right to VA benefits, and if requested information necessary to complete an application for benefits is not received by the Secretary within one year from the date such notice, no benefit may be paid. See 38 U.S.C. §§ 501, 5102(c). At the time of the April 1989 rating decision that awarded a 30 percent rating, the RO had no verification that the Veteran’s marriage was still ongoing, as indicated by an April 1989 letter noting that VA required documentation of the Veteran’s marriage. See Sharp v. Shinseki, 23 Vet. App. 267, 276 (2009) [the status of dependents can be “ever changing”]. Accordingly, an effective date of April 1989 is not warranted. In order to establish dependent status, the RO required the submission of a completed VA Form 21-686c. The Board finds that the weight of the evidence demonstrates that the Veteran did not submit the requested information needed to establish entitlement to additional VA benefits for a dependent spouse until September 10, 2012, well over a year after the issuance of the April 1989 notice letter. To the extent that the Veteran asserts that he had provided earlier proof of marriage in the form of a marriage certificate in 1989, there is no clear evidence showing that VA received the requisite documentation (VA Form 21-686c) confirming the current status of his dependent(s) at the time he was deemed eligible for additional compensation for dependent(s) in April 1989. The Court in Sharp noted that there is no freestanding claim for dependency benefits; rather, the effective date for additional compensation for dependents shall be the same as the date of the rating decision giving rise to such entitlement. Sharp, 23 Vet. App. at 276. The Court held there could be multiple rating decisions establishing entitlement to additional dependency compensation and all that is required is that the proof of dependents be submitted within one year of the notice of rating action. Id. When discussing its reasoning, in Sharp, the Court noted that it was mindful of the role of finality in decisions regarding additional compensation for benefits but added that the status of dependents can be ever changing. Id. The Court’s holding in Sharp is applicable to this case. As the Board has already discussed, proof of dependent status was not received by VA within one year of the issuance of the April 1989 rating decision, which established initial eligibility to compensation for dependents. Thus, an earlier effective date for dependent compensation cannot be established based on the April 1989 rating action. In September 2012, VA received the request dependency information regarding his current marriage on a VA Form 21-686c. The Board has considered the Veteran’s assertion that he was not aware that he was being paid as a single veteran until 2012. However, the Veteran has acknowledged that he received the April 1989 letter informing him that he needed to submit the requested documentation to receive additional compensation for a dependent. Moreover, VA law and regulations are clear with regard to the assignment of effective dates; the Board must apply the law as it exists and is not permitted to award benefits based on sympathy for a particular appellant. Owings v. Brown, 8 Vet. App. 17, 23 (1995). In view of the foregoing, the Veteran’s claim for an earlier effective date cannot be granted. 38 C.F.R. § 3.31. CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Murray, Counsel