Citation Nr: 18159024 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 17-19 545 DATE: December 19, 2018 ORDER Entitlement to an effective date prior to June 23, 2015, for an additional amount of compensation for a dependent spouse, is denied. FINDING OF FACT The Veteran credibly asserts that he completed a VA Form 21-686c in 2005 after an August 2005 rating decision granted a qualifying 40 percent disability rating, but that form is not in the claims file and the presumption of regularity requires a finding that it was not received by VA at that time. Otherwise, the RO did not receive notice of his dependent spouse’s existence together with evidence of the marriage until June 23, 2015. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to June 23, 2015, for additional compensation for a dependent spouse have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.4, 3.50, 3.57, 3.102, 3.205, 3.401. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1971 to July 1973 and from July 1973 to March 1976. The case is on appeal from a September 2015 decision that granted an additional amount of dependent’s compensation for the Veteran’s spouse effective from June 23, 2015. Additional evidence was received after the April 2017 statement of the case (SOC), but it is not relevant in this appeal. 1. Entitlement to an effective date prior to June 23, 2015, for additional compensation for a spouse The Veteran is seeking an earlier effective date for the award of an additional amount of compensation for his dependent spouse. The current effective date is June 23, 2015. He contends that he first filed a VA Form 21-686c, Declaration of Status of Dependents, in 2005 when he was initially awarded a 40 percent disability rating. A. Applicable Law An additional amount of compensation may be payable for a spouse, child, and/or dependent parent where a veteran is entitled to compensation based on disability evaluated as 30 per centum or more disabling. 38 C.F.R. § 3.4(b)(2). Awards of pension or compensation payable to or for a veteran will be effective as for additional compensation for a dependent based on the latest of the following dates: (1) Date of claim. This term means the following, listed in their order of applicability: (i) Date of veteran’s marriage, or birth of his or her child, or, adoption of a child, if the evidence of the event is received within 1 year of the event; otherwise, (ii) Date notice is received of the dependent’s existence, if evidence is received within 1 year of the Department of Veterans Affairs request. (2) Date dependency arises. (3) Effective date of the qualifying disability rating provided evidence of dependency is received within 1 year of notification of such rating action. 38 C.F.R. § 3.401(b). See also 38 U.S.C. § 5110(f). 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) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 1415, 47 S.Ct. 1, 71 L.Ed. 131 (1926)).” 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). The presumption of regularity dictates that, if VA had received a document from a veteran, it would have been associated with the claims file and acted on in some manner. Fithian, 24 Vet. App. at 151. B. Discussion In this case, the sole question at issue is whether the Veteran provided evidence of his spouse’s dependency prior to June 23, 2015, specifically in 2005. Here, the claims file shows that the Veteran filed on June 23, 2015, a VA Form 21-686c together with proof of marriage. The current effective date is based on this submission. There is no dispute as to the validity of this marriage. There is also no dispute that he is entitled to the additional amount of compensation for his dependent spouse. Finally, there is no indication that he filed evidence of the dependency between 2005 and June 23, 2015. On this basis, the focus of this appeal begins with an August 2005 rating decision, which awarded a 40 percent disability rating, thereby qualifying him for the additional amount of dependency compensation. See 38 C.F.R. § 3.4(b)(2). A blank VA Form 686c was enclosed with notice of this award. The Veteran contends that he filed a completed VA Form 21-686c shortly thereafter in 2005. The claims file does not contain a copy of this form. The Board reviewed every page of every document in his claims file, but did not locate a VA Form 21-686c filed in 2005. In various statements, such as his November 2015 notice of disagreement (NOD), the Veteran asserted that the form was likely lost by VA. He also conceded in his NOD that the form could have been lost in the mail. By comparison, he wrote in an August 2015 statement that he filled out the form with his prior Veterans Service Organization (VSO), who was his power of attorney at that time. Afterwards, he had “not heard anything back from them at all.” He had also sent this VSO a copy of his four divorce decrees, but now had none of the divorce decrees. At this point, there is no reason to doubt the credibility of the Veteran’s statements that he did prepare a VA Form 686c in 2005 for submission to VA. On this basis and consistent with the Veteran’s statements, there are three potential reasons for why it is not in his claims file: (1) it was not submitted by his representative; (2) it was lost in the mail prior to reaching VA; (3) it was received by VA and never associated with his claims file. Of these three alternatives, the presumption of regularity rules out the third option. Under the presumption of regularity, it must be assumed that VA would have associated the form with his claims file and acted on it if it had been received. See Fithian, 24 Vet. App. at 151. Because the form was not associated with his claims file and was never acted on, the law requires the Board to assume that it was never received by VA. In light of this presumption, the Board cannot resolve reasonable doubt in his favor to find that it was lost upon receipt by VA. To this extent, the Veteran’s statements indicating the possibility that it was lost upon receipt by VA are not sufficient to overcome this presumption. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir 2009); Clarke v. Nicholson, 21 Vet. App. 130 (2007). Because the Board can only infer that it was not received by VA in 2005, there is no basis to assign an earlier effective date. In short, the Veteran may have completed a VA Form 21-686c in 2005 after the August 2005 rating decision, but that form is not in the claims file and the presumption of regularity requires a finding that it was not received by VA at that time. Otherwise, the RO did not receive notice of his dependent spouse’s existence together with evidence of the marriage until June 23, 2015. Thus, as matter of law, the appeal for an earlier effective is denied. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Bosely, Counsel