Citation Nr: 18160912 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 17-05 890 DATE: December 28, 2018 ORDER Entitlement to an effective date prior to April 24, 2015, for the award of dependency benefits for the Veteran’s spouse, D.R., is denied. FINDING OF FACT VA received notification on April 24, 2015, of the Veteran’s June 2012 marriage to his current spouse, D.R. CONCLUSION OF LAW The criteria for an effective date earlier than April 24, 2015, for the award of dependency benefits for the Veteran’s current spouse, have not been met. 38 U.S.C. §§ 1115, 5110; 38 C.F.R. §§ 3.4, 3.31, 3.401. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from May 1979 to May 2004. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 determination of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran seeks an effective date earlier than April 24, 2015, for the award of dependency benefits for his current spouse, D.R. He contends that the effective date should be the date of his current marriage, June 30, 2012. Specifically, he alleges that the relevant information was submitted online via eBENEFITS in July 2012. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. A Veteran who is in receipt of disability compensation of 30 percent or more is entitled to an additional allowance for each dependent. See 38 U.S.C. § 1115. The effective date of an award of additional compensation for dependents based on the establishment of a 30 percent or more rating will be the latest of the following dates: (1) date of claim for dependency; (2) 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). 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(f), (n); 38 C.F.R. § 3.401(b)(1). The earliest date that an additional award of compensation for a dependent spouse 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. The Veteran has been in receipt of a 40 percent rating or higher since June 1, 2004. Thus, as the threshold combined disability evaluation of 30 percent or more under 38 U.S.C. § 1115 has been met since the date of his marriage, the Board may proceed with an analysis as to the Veteran’s claim for an earlier effective date. The Veteran married D.R. on June 30, 2012. Notice of the Veteran’s June 30, 2012 marriage was not provided to VA until a VA Form 21-686c, Declaration of Status of Dependents, was received by VA on April 24, 2015. Although the Veteran has reported submitting information concerning his marriage in July 2012, the record is devoid of any such submission. After a review of the evidence of record, the Board finds that an effective date prior to April 24, 2015, for additional dependency allowance for the Veteran’s spouse is not warranted. There is no documentation in the claims file that the Veteran notified VA of D.R.’s dependency prior to April 24, 2015. Although they were indeed legally married prior to that date, the regulations concerning effective dates hinge upon the date of notification, unless the claim was received within one year of the marriage. As noted above, VA did not receive notice of the Veteran’s marriage until approximately three years after it took place. Accordingly, the date of the claim in this case is not the date of the Veteran’s marriage, but rather the date VA received evidence of the Veteran’s marriage, which was April 24, 2015. Therefore, April 24, 2015 is the proper effective date for the award of a dependency allowance for the Veteran’s spouse and it was appropriate for the commencement of payment to begin on May 1, 2015, the day of the month following the effective date. See 38 C.F.R. §§ 3.31, 3.401(b). 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 that the Veteran filed any evidence concerning his current marriage prior to April 24, 2015. The Veteran himself has indicated that the evidence was submitted online via eBENEFITS. Other than his statement, he has not provided any documentation of this date of filing. In sum, with the exception of the Veteran’s own statements, there is no evidence to rebut the presumption of regularity. Thus, the Board presumes that no such dependency information was filed with the RO until April 24, 2015. After considering the facts of this case, the Board finds that there is no legal basis to assign an effective date prior to April 24, 2015 for the award of spousal dependency benefits for D.R. Although the Board is sympathetic to the Veteran’s contentions, the Board is bound by the laws and regulations that apply to Veteran’s claims. 38 U.S.C. § 7104(c); 38 C.F.R. §§ 19.5, 20.101(a). The claim for an effective date earlier than April 24, 2015, for the award of spousal dependency benefits for D.R., must therefore be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive of the claim, it should be denied because of lack of legal entitlement under the law). Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Robinson, Associate Counsel