Citation Nr: 18156402 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 18-12 616 DATE: December 11, 2018 ORDER The claim of entitlement to additional retroactive payment of VA disability compensation due to the grant of an earlier effective date for the award of service connection for headaches is denied. FINDING OF FACT The Veteran has received all authorized retroactive VA disability compensation based on the Board’s grant of an earlier effective date of March 9, 1978, for the award of service connection for headaches. CONCLUSION OF LAW The claim of entitlement to additional retroactive compensation payment of VA disability compensation based on the award of an earlier effective date of March 9, 1978, for the award of service connection for headaches is without legal merit. 38 U.S.C. §§ 1104, 1114(j); 38 C.F.R. § 3.21. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1976 to March 1978. This appeal to the Board of Veterans’ Appeals (Board) arose from a June 2008 determination of the Department of Veterans Affairs (VA) Appeals Management Center (AMC) regarding the amount of retroactive VA disability compensation due and paid on implementation of a December 2007 Board decision granting the Veteran’s claim for an earlier effective date for the award of service connection for headaches. In August 2010, the Veteran testified during an RO hearing before a decision review officer (DRO); a transcript of that hearing is of record. Regarding the matter of representation, the Board notes that in April 2015, VA received a VA Form 21-22 in favor of Disabled American Veterans (DAV); however, that VA Form 21-22 was signed only by DAV, making it invalid. In October 2018, the Board wrote to the Veteran informing him that he was currently considered to be unrepresented, as it could not accept the April 2015 VA Form 21-22. The Veteran was provided with the opportunity to submit a valid VA Form 21-22 and was informed that if no response was received within 30 days from the date of the Board’s letter, the Board would assume that the Veteran desired to represent himself. No response was thereafter received. As such, the Veteran is recognized as now proceeding pro se in this appeal. Also, this appeal has been advanced on the Board’s docket. See 38 U.S.C. § 7107 (a)(2); and 38 C.F.R. § 20.900(c). In the instant case, the Veteran contends that he did not receive all retroactive payment amounts following a December 2007 Board decision, wherein the Board granted entitlement to an effective date of March 9, 1978, for the award of service connection for headaches. A review of the record show that the Veteran was initially awarded service connection for headaches via a September 2005 rating decision, wherein he was also assigned a 30 percent disability rating, effective May 14, 2003. The Veteran disagreed with the assigned effective date, and in a February 2007 rating decision, a DRO assigned an earlier effective date of June 14, 2002, for the award of service connection and the assignment of the initial 30 percent rating for headaches. The Veteran continued to appeal the issue of entitlement to an earlier effective date for the award of service connection to the Board and in a December 2007 Board decision, the Board granted an earlier effective date of March 9, 1978.. The Board’s decision was implemented in a January 2008 rating decision in which the RO granted service connection and assigned an initial 30 percent rating for headaches, effective March 9, 1978. In June 2008, the RO informed the Veteran regarding his retroactive payment of VA disability compensation due to the Board’s grant of an earlier effective date for headaches. The RO detailed the Veteran’s monthly award, beginning in March 1978, to include any amount withheld as required to offset retired pay, as well as adjustments for dependents. In November 2008, the Veteran filed a notice of disagreement, asserting that he was owed additional monies due to the earlier effective date award. The Veteran acknowledged that he had received a payment in the amount of $50, 181.76, and requested an audit of his account. During the August 2010 DRO hearing, the Veteran acknowledged that he received a check in September 2008, the amount of which was nearly $47,000.00. He continued to maintain, however, that he was owed substantially more funds than he had been paid by VA. An audit of the Veteran’s account was then prepared in August 2010, the report of which shows monies owed and payments made for the period from March 9, 1978, to June 1, 2009. Specifically, it was indicated that for the period from March 9, 1978, to November 30, 2000, the Veteran was due VA disability compensation in the total amount of $81,820.75, of which he had been paid $35,101.00. The audit further reflects that a check for $46,719.75, the difference between the amount owed and the amount paid, was issued on September 10, 2008. The Board notes that a copy of this check, negotiated by the Veteran, is of record. Then, for the period from December 1, 2000, to July 30, 2010, it was stated that the Veteran was due $222,846.40, and that he was paid $222,846.40, to include a check for $76,852.00 issued on April 29, 2009, and a check for $1,547.00 issued in May 2009. In response to the audit, the Veteran asserted that he was still owed $38,772.75. In May 2011, the VA Finance Department conducted another audit of the Veteran’s VA compensation account for the period effective from March 9, 1978, through July 2010. The results of that audit showed that the Veteran had received all amounts due and that no additional retroactive payment amounts were owed. In correspondence received in August 2017, the Veteran admitted that he received the September 2008 check in the amount of $46,719.75, but argues that there is no indication that that check was reflective of any retroactive payment award due on account of the Board’s assignment of an earlier effective date for the award of service connection for headaches. The Veteran further argued that because that check was issued for far less than the total amount owed, he is still due a significant amount of retroactive VA disability compensation. In February 2018, the RO issued a statement of the case (SOC), which contains the results of an additional audit of the Veteran’s VA compensation account conducted in February 2018. The audit shows that for the period from March 9, 1978, through July 30, 2010, the Veteran was due VA disability compensation in the total amount of $405,877.23, of which he had been paid $405,877.23. The audit reflects that the Veteran was issued retroactive payments in the amounts of $46,719.75, by check dated on September 10, 2008; $76,852.00, by check dated on April 29, 2009; and $1,547.00, by check dated on May 1, 2009. In the instant case, the Veteran has not disagreed with VA’s calculation of monies owed resulting from the RO’s implementation of the Board’s December 2007 grant of an earlier effective date for the award of service connection for headaches. Rather, it appears that the Veteran is asserting that he hasn’t received payment of all retroactive amounts due, to include his disagreement with the nature of the check issued in the amount of $46,719.75. The Board notes that the payment of monetary benefits by VA, to include when a higher rating is assigned, is governed by various applicable laws and regulations. See, e.g., 38 U.S.C.A §§ 5110, 5112; 38 C.F.R. §§ 3.400, 3.401, 3.501. In the instant case, the VA Finance Department has conducted three audits of the Veteran’s VA compensation account during the pertinent period in light of the Veteran’s contentions. A review of the evidence, to include those pertaining to the initial determination and distribution of the retroactive payment, as well as the August 2010, May 2011, and February 2018 audits, reflects the Veteran received the proper amount of retroactive payment upon the RO’s January 2008 implementation of the Board’s grant of an effective date of March 9, 1978, for the award of service connection for headaches and assignment of an initial 30 percent rating. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has long recognized that “[t]here is a presumption of regularity under which it is presumed that government officials ‘have properly discharged their official duties.’” Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)). The presumption of regularity may be overcome only by the submission of “clear evidence to the contrary.” Id. at 309. Applying the presumption to the instant case, the Board finds the Veteran has not provided clear evidence to the contrary that the amount of his retroactive payment was properly calculated and distributed, particularly in light of the aforementioned August 2010, May 2011, and February 2018 audits. In view of the foregoing, the Board finds that the benefit sought on appeal with respect to this claim must be denied. The Board acknowledges the Veteran’s contentions that the retroactive payment he received was in error, in part, because it was not specifically indicated that the September 2008 check issued in the amount of $46,719.75, was for retroactive active payment of past due benefits. However, there is no indication in the record that the Veteran was otherwise due $46,719.75, save for the RO’s implementation of the Board’s grant of an earlier effective date for the award of service connection for headaches, and the Veteran has advanced no argument as to why he would otherwise be entitled to the $46,719.75. Hence, the Board finds the Veteran’s arguments as to error have no legal merit. As a final point, the Board notes that the Veterans Claims Assistance Act of 2000, codified in pertinent part at 38 U.S.C. §§ 5103, 5103A and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, describe VA’s duties to notify and assist claimants in substantiating a claim for VA benefits. However, where, as here, the claim is essentially being denied as a matter of law, the duties imposed by the VCAA are not applicable. See, e.g., Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Neilson, Counsel