Citation Nr: 1808901 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 16-63 173 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an effective date prior to May 22, 2013 for adding the Veteran's spouse as a dependent to his award. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD N.S. Pettine, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1991 to April 1991, including service in the Southwest Asia theater of operations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In November 2016, the Veteran and his spouse testified at a hearing at the RO before a Decision Review Officer (DRO). A report of that hearing is associated with the Veteran's claims file. In October 2017, the Veteran and his spouse testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. In April 2004, the Veteran was awarded a 100 percent disability rating for posttraumatic stress disorder (PTSD), effective November 17, 1993. 2. The Veteran and his spouse married on June [redacted], 2005. 3. The record contains clear evidence that VA was notified of the Veteran's marriage prior to May 22, 2013. CONCLUSION OF LAW The criteria for an earlier effective date of June [redacted], 2005 for adding the Veteran's spouse as a dependent to his award have been met. 38 U.S.C. §§ 1115, 5107, 5110 (2012); 38 C.F.R. §§ 3.31, 3.205, 3.400, 3.401(b) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans having a service-connected disability that is compensated at 30 percent or more may be entitled to additional compensation for a dependent spouse, dependent parents, or unmarried children under 18 (or under 23 if attending an approved school) or when prior to age 18 the child has become permanently incapable of self-support because of mental or physical defect. 38 U.S.C. § 1135; 38 C.F.R. § 3.4(b)(2). Generally, the effective date of such an award of increased compensation is the latest of the following dates: (1) Date of claim. This term means the following, listed in their order of applicability: (i) Date of the veteran's marriage, or birth of his or her child, or adoption of a child, if the evidence of the event is received within one year of the event; otherwise. (ii) Date notice is received of the dependent's existence, if evidence is received within one year of VA's request; (2) Date the 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 the veteran's award. 38 C.F.R. § 3.401(b). In the December 2016 Statement of the Case (SOC), the RO indicated that the earliest VA became aware of the Veteran's marriage was May 22, 2013-the date of receipt of a VA Form 686c, Declaration of Status of Dependents. The Veteran contends that this is incorrect. Rather, as he testified during the October 2017 Board hearing, he in actuality notified VA of his marriage in July 2005-approximately one month after he was married. See Hearing Tr. at 3. In essence, the Veteran is contending that VA did not process his claim to add a dependent regularly in the normal course. After carefully reviewing the evidence of record, the Board agrees. Accordingly, the Board will grant the Veteran's claim and assign an effective date of June [redacted], 2005-the date of the Veteran's marriage. In asserting entitlement to an effective date prior to May 22, 2013, the Veteran has challenged the acknowledged "presumption of regularity," under which it is presumed that government officials properly discharge their official duties in a regular course. Clear evidence to the contrary is required to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App. 62 (1992). Once the presumption of regularity has been rebutted by clear evidence, the burden shifts to VA to show that there was compliance with administrative procedure. In Jones v. West, the Court of Appeals for Veterans claims held that a statement of a claimant, standing alone, is not sufficient to rebut the presumption of regularity in RO operations. 12 Vet. App. 98, 100 (1998). In the instant case, the other evidence of record, in combination with the Veteran's consistent statements throughout the appeal period, provide clear evidence to rebut the presumption of regularity. Specifically, following the award of a 100 percent rating for PTSD, in November 2004, the Veteran submitted a copy of a court order documenting that he had legally changed his name. In correspondence submitted with the court order, the Veteran indicated that he had previously submitted a copy of the court order, but VA had not taken action to correct his legal name, unlike other government agencies. Thereafter, there is an approximate 13-month gap in the Veteran's claims file until March 2006. In that month, VA received correspondence from the Veteran dated in February 2006 wherein it appears that the Veteran was responding to a letter sent to him by VA. In this February 2006 correspondence, the Veteran referred to an enclosed court order and noted that this was the third time he had submitted this documentation. At the October 2017 Board hearing, the Veteran testified as to receiving correspondence from VA in 2006 requesting that he resubmit a copy of a prior divorce decree. See Hearing Tr. at 4-5. Neither 2006 correspondence from VA nor prior submissions regarding a divorce decree are associated with the claims file. Additionally, although the July 2015 rating decision on appeal referred to receiving a copy of the divorce decree in February 2006, the Veteran's claims file currently does not show that one was uploaded during this time period. Subsequently, in May 2013, the Veteran again responded to correspondence from VA and provided copies of his divorce decree and proof of marriage as well as a VA Form 21-686c. The Veteran inquired as to why the enclosed information had not been processed previously. A copy of the correspondence the Veteran responded to in May 2013 is not associated with the claims file. The proof of marriage received indicates that the Veteran and his spouse were married on June [redacted], 2005. The Veteran submitted additional documentation as to his marriage and prior divorce again in June 2013. Thereafter, in a June 2013 VA Form 21-0820 Report of General Information, the Veteran stated that submitted a complete VA Form 21-686c, a copy of his marriage certificate, and a copy of a divorce decree, but the VA employee who conversed with the Veteran could not find anything of record. Then, in August 2013, the RO sent the Veteran a letter stating that they did not receive his dependency claim and requested that he submit another VA Form 21-686c. As recorded in a January 2014 VA 21-0820, the Veteran again inquired if VA had received a copy of his marriage license and divorce decree. Having heard nothing, the Veteran again called in February 2014 and inquired if the RO had received his information. Subsequently, in March 2014, the RO sent the Veteran another letter requesting additional evidence. The RO asked the Veteran to complete another VA Form 21-686c and to provide his complete marital history. Later that month, the Veteran submitted another VA Form 21-686c. As illustrated above, the chronology of this case indicates that the Veteran submitted documentation regarding his prior divorce and the existence of his current marriage and dependents on several occasions, only to have VA inform him that nothing was received and then ask him to resubmit the same information. Additionally, correspondence sent by VA regarding the status of the Veteran's dependents is also missing from the claims file. Further, despite this lack of clarity, in November 2016, the Veteran submitted copies of his spouse's CHAMPVA benefits card. The card lists June [redacted], 2005-the date of the Veteran's marriage-as the effective date for his spouse's benefits, leading the Board to conclude that VA had already recognized that the Veteran was married in June 2005. Taking these factors in combination with the Veteran's consistent statements throughout the entirety of the appeal period leaves the Board to conclude that there is clear evidence to rebut the presumption of regularity in the instant case. The burden therefore shifts to VA to show that there was compliance with administrative procedure. However, that burden has not been met as evidenced by the numerous requests by VA for duplicative information from the Veteran regarding the status of dependents. Further, the claims file contains multiple examples of the Veteran responding to information requests, only to be later told by VA that it could not verify whether they possessed information regarding his marriage and prior divorce. For these reasons, the Board cannot conclude that the RO fully complied with administrative procedure in the instant case. Having found that VA did not comply with administrative procedure, the Board must assign a new effective date for the recognition of the Veteran's spouse as a dependent on his award. Pursuant to 38 C.F.R. § 3.401(b), the Board will assign June [redacted], 2005-the date of marriage-as the effective date, as the Board finds credible that the Veteran notified VA of his marriage in July 2005. Having submitted notification within one year from the date of marriage, the Veteran is entitled to have his marriage date as the effective date. ORDER An earlier effective date for the addition of the Veteran's spouse to his award as a dependent is granted, effective June [redacted], 2005. ____________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs