Citation Nr: 20002240 Decision Date: 01/10/20 Archive Date: 01/09/20 DOCKET NO. 18-03 006 DATE: January 10, 2020 ORDER An effective date prior to August 8, 2014, for the addition of the Veteran's child, E., as his dependent to his award of Department of Veterans Affairs (VA) disability compensation is denied. FINDING OF FACT The Veteran first notified VA of the June 2009 birth of his child, E, on August 8, 2014. CONCLUSION OF LAW The criteria for an effective date prior to August 8, 2014, for the addition of the Veteran's child, E., as his dependent to his award of VA disability compensation, have not been met. 38 U.S.C. §§ 1115, 5110 (2012); 38 C.F.R. §§ 3.4, 3.204, 3.401 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from April 2004 to February 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 decision of a VA Regional Office (RO). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Entitlement to an effective date prior to August 8, 2014, for the addition of the Veteran's child, E., as his dependent to his award of VA disability compensation. 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; 38 C.F.R. § 3.4(b)(2). Here, the Veteran's service-connected disabilities have been rated at least 30 percent since February 18, 2006. As such, the threshold criteria of a minimum 30 percent disability rating for basic entitlement to additional payment for dependents has been met since February 18, 2006. 38 U.S.C. § 1115. 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 veteran's award. 38 C.F.R. § 3.401(b). The "date of claim" for additional compensation for a dependent child is the date of the child’s birth, 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; 38 C.F.R. § 3.401. Under 38 U.S.C. § 5101(a), a specific claim must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See also 38 C.F.R. § 3.151(a). The Secretary has authority to prescribe the nature and extent of the proof required in order to establish a right to VA benefits. See 38 U.S.C. § 501. 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). If information that a claimant and the claimant's representative, if any, are notified under subsection (b) is 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. 38 U.S.C. § 5107(a). 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; 38 C.F.R. § 3.204. The law provides for a presumption of regularity with regard to processes and procedures throughout the VA administrative process. See generally, Marsh v. Nicholson, 19 Vet. App. 381, 386-87 (2005); Crain v. Principi, 17 Vet. App. 182, 186 (2003); Redding v. West, 13 Vet. App. 512, 515 (2000). Yet we recognize that the presumption of regularity is not absolute and may be rebutted by the submission of "clear evidence to the contrary." Warfield v. Gober, 10 Vet. App. 483, 486 (1997). In this regard, the Court has held that the question of whether clear evidence exists to rebut the presumption of regularity is a question of law. See Crain v. Principi, 17 Vet. App. 182, 188 (2003). Clear evidence sufficient to rebut the presumption of regularity has been found when VA addressed communications to a wrong street name, wrong street number, or wrong zip code in circumstances indicating that such errors were consequential to delivery. See, e.g., Fluker v. Brown, 5 Vet. App. 296, 298 (1993); Piano v. Brown, 5 Vet. App. 25, 26-27 (1993) (per curium); see also Crain, 17 Vet. App. at 188-89. If the Veteran succeeds in rebutting the presumption of regularity, the burden then shifts to VA to establish that regular administrative practices were, in fact, observed. See Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992); Butler v. Principi, 244 F.3d 1337, 1340 (Fed.Cir.2001) (the presumption of regularity allows courts to presume that what appears regular is regular, the burden shifting to the claimant to show the contrary); see also Baxter v. Principi, 17 Vet. App. 407, 410 (2004). Here, the Veteran asserts that he is entitled to an effective date prior to August 8, 2014, for additional dependency benefit for his child, E. He seeks an effective date of June 2009, the date of E.'s birth, for the addition of E. as his dependent to his award of VA disability compensation. The Board has carefully reviewed the record and finds no basis under the law to award an effective date earlier than August 8, 2014, for the addition of E. as the Veteran's dependent to his award of VA disability compensation. The Veteran had one year from E.'s June 2009 birth to notify VA of her birth, for the date of birth to be considered the date of claim. However, this is not demonstrated. There is no evidence in the file showing that, within one year of E.’s birth, the Veteran submitted E.’s birth certificate or any other evidence that would serve to inform VA of her birth. To the contrary, the record shows that the Veteran did not inform VA of E.'s birth until August 8, 2014, which is clearly outside that one-year period. Accordingly, the RO has already assigned the earliest possible effective date for the addition of E. The Board acknowledges the Veteran's statements that he notified VA of E.'s birth in 2009 by submitting her birth certificate and that he has always been consistent in promptly notifying VA of any life changes. See December 2016 notice of disagreement and December 2017 VA Form 9. However, as indicated, no such notification or evidence is present in the claims folder. Notably, he has not submitted any evidence or argument to corroborate his statements. The Board finds that the Veteran’s uncorroborated statements do not rise to the level of clear evidence to rebut the presumption of regularity. Consequently, there is no legal basis upon which to grant an effective date prior to August 8, 2014, for the addition of E. as the Veteran's dependent to his award of VA disability compensation. The Board sympathizes with the Veteran regarding the inequities he believes result in not being entitled to those dependent benefits at an earlier time. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104 (2012); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board further observes that "no equities, no matter how compelling, can create a right to payment of the United States Treasury which has not been provided for by Congress." See Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992), citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990). The Board is bound by the law governing the assignment of effective dates in its determination in this case. See 38 U.S.C. § 7104(c). (Continued on the next page)   Based on the foregoing, the claim of entitlement to an effective date prior to August 8, 2014, for the addition of E. as the Veteran's dependent child to his award of VA disability compensation must be denied. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Thomas, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.