Citation Nr: 20007047 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 18-16 228 DATE: January 28, 2020 ORDER An effective date prior to February 1, 2016, for the award of additional compensation for a dependent son, S.C., is denied. An effective date prior to July 1, 2016, for the award of additional compensation for a dependent spouse, M.C., is denied. FINDINGS OF FACT 1. The Veteran’s VA Form 21-686c (Declaration of Status of Dependents Questionnaire), wherein he reported the January [REDACTED], 2003, birth of his son, S.C., was not received until January 31, 2016. 2. The Veteran’s VA Form 21-686c, wherein he reported his May [REDACTED], 2001, marriage to his spouse, M.C., was not received until June 22, 2016. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to February 1, 2016, for the award of additional compensation for a dependent son, S.C., have not been met. 38 U.S.C. §§ 1115, 5101, 5110; 38 C.F.R. §§ 3.4, 3.204, 3.213, 3.216, 3.401. 2. The criteria for an effective date prior to July 1, 2016, for the award of additional compensation for a dependent spouse, M.C., have not been met. 38 U.S.C. §§ 1115, 5101, 5110; 38 C.F.R. §§ 3.4, 3.204, 3.213, 3.216, 3.401. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1979 to July 1999. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from administrative decisions issued in January 2016 and June 2016 by a Department of Veterans Affairs (VA) Regional Office. 1. Entitlement to an effective date prior to February 1, 2016, for the award of additional compensation for a dependent son, S.C. 2. Entitlement to an effective date prior to July 1, 2016, for the award of additional compensation for a dependent spouse, M.C. The Veteran is seeking effective dates prior to February 1, 2016, and July 1, 2016, for the award of additional compensation for his son, S.C., and spouse, M.C., respectively, as his dependents. In this regard, he contends that he may not have received notice regarding the payment of additional compensation for dependents and the requirements to obtain such compensation. Alternatively, he asserts that VA should award retroactive compensation even if he received appropriate notice, given that his failure to follow the requirements was due to his service-connected depression and posttraumatic stress disorder (PTSD). Any veteran who is entitled to disability compensation, and whose disability is rated not less than 30 percent, is entitled to additional compensation for dependents, including a spouse. 38 U.S.C. § 1115; 38 C.F.R. § 3.4(b)(2). An award of additional compensation on account of dependents based on the establishment of a disability rating in the percentage evaluation specified by law for that purpose shall be payable from the effective date of such rating; but only if proof of dependents is received within one year from the date of notification of such rating action. 38 U.S.C. § 5110(f). Specifically, the effective date for the additional of a dependent will be the latest of the following dates: (1) date of claim; (2) date the 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; 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; 38 C.F.R. § 3.401. Regarding establishing entitlement to a higher rate of pension, compensation, or dependency and indemnity compensation based on the existence of a dependent, VA will require evidence which satisfies the requirements of § 3.204. 38 C.F.R. § 3.213(a). 38 C.F.R. § 3.204 indicates that VA will accept, for the purpose 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, where the claimant’s dependent child does not reside with the claimant, the name and address of the person who has custody of the child. In addition, a claimant must provide the social security number of any dependent on whose behalf he or she is seeking benefits. 38 C.F.R. § 3.216. Further, the United States Court of Appeals for Veterans Claims (Court) has found that, while acceptance of a claimant’s written statement may be evidence of the existence of a dependent, it is only acceptable when it contains specific, required information. See McColley v. West, 13 Vet. App. 553, 557 (2000). By way of background, a July 2004 rating decision resulted in the award of a combined disability rating of 30 percent, effective October 1, 1999. Thus, the Veteran was eligible for the award of compensation for his dependent spouse as of May [REDACTED], 2001, the date of his marriage, and his dependent son as of January [REDACTED], 2003, the date of his birth. Although his July 2002 formal claim includes certain information regarding his marriage to his dependent spouse, the Veteran did not provide required information, i.e., his spouse’s social security number, per 38 C.F.R. § 3.216. As a result, the Agency of Original Jurisdiction (AOJ) notified the Veteran in an October 2004 letter that he was being paid as a single veteran, but he might be entitled to additional benefits for his dependents. Thus, the AOJ enclosed a VA Form 21-686c for the Veteran to complete and return in order to receive such additional compensation. However, he did not respond or submit the required information within one year of the October 2004 notification of the award Likewise, in February 2012, May 2012, February 2013, and October 2013 award letters, the AOJ informed the Veteran that he was being compensated as a single veteran with no dependents, but he could submit a completed VA Form 21-686c to receive an additional allowance for all eligible dependents. Again, he did not provide VA with the requisite information within one year of the issuance of such award letters. Critically, VA did not receive the Veteran’s completed VA Form 21-686c for his dependent son until January 31, 2016, approximately 13 years after his birth and over 11 years after the initial notification of the award of compensation. Similarly, VA did not receive the Veteran’s completed VA Form 21-686c for his dependent spouse until June 22, 2016, approximately 15 years after his marriage and 12 years after the initial notification of the award of compensation. Consequently, the AOJ assigned effective dates of February 1, 2016, and July 1, 2016, the first day of the month following receipt of each of the respective claims. Regarding the Veteran’s assertion that he did not receive proper notice, there is a presumption of administrative regularity under which it is presumed that a claimant received proper notice by VA. Boyd v. McDonald, 27 Vet. App. 63, 71-72 (2014) (holding that under the presumption of regularity, if notice is sent to the claimant’s last known address of record, it will be presumed that VA properly discharged its official duties) (citing Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007)); United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). This presumption may only be rebutted with “clear evidence to the contrary.” Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992). Notice of VA’s action is ordinarily deemed to be the date of mailing of notice of that action to the claimant and the representative, if any, to the last known address of record. If so mailed, the law presumes that the notice was properly mailed to the veteran and the representative on the date stamped thereon. Matthews v. Principi, 19 Vet. App. 23, 27 (2005). This presumption may be rebutted by a showing that the notice was not mailed to the correct, last-known address. Id. Upon review, the Board finds the Veteran’s unsupported contentions that he did not receive the October 2004, February 2012, May 2012, February 2013, and October 2013 notification letters to be insufficient to rebut the presumption of regularity as to VA’s handling of such documents. Here, a review of the letters shows that such were mailed to the Veteran’s address of record, and there is no indication that any were returned as undeliverable. In fact, the record reflects that he still resides at that address. Additionally, the Veteran’s pursuit of multiple claims throughout the pendency of the appeal shows that he continues to receive and respond to mail from such address. Consequently, the Board presumes the Veteran received proper notice of the availability of additional compensation for dependents and the requirements to receive such additional compensation. As for the Veteran’s argument that his service-connected depression and PTSD impaired his ability to fulfill the VA requirements for additional compensation, the Board finds such is essentially akin to a request that the time period for the receipt of such information be tolled based on equity. In this regard, the Court has recognized that equitable tolling is potentially applicable to untimely or improperly filed substantive appeals. Hunt v. Nicholson, 20 Vet. App. 519, 524-25 (2006). Clearly, the issues and procedural questions at the crux of the instant case diverge from that of the filing of a substantive appeal. Nevertheless, the Board notes the analogous theory underlying the Veteran’s particular argument and the question of equitable tolling must be assessed on a case-by-case basis. Sneed v. Shinseki, 737 F.3d 719, 726 (Fed. Cir. 2013). Thus, the Board will consider whether any such relief is available in the instant case. Generally, equitable tolling applies only where circumstances preclude a timely filing, despite the exercise of due diligence, such as: (1) mental illness rendering one incapable of handling one’s own affairs or other extraordinary circumstances beyond one’s control; (2) reliance on the incorrect statement of a VA official; or (3) a misfiling at the AOJ or the Board. Bove v. Shinseki, 25 Vet. App. 136, 140 (2011) (per curiam order). Here, the Veteran essentially asserts that his service-connected psychiatric disability rendered him incapable of properly completing and submitting the necessary paperwork to obtain additional compensation for his dependents. In this respect, the Board acknowledges the functional impairment resulting from the Veteran’s service-connected depression and PTSD; however, it must be noted that such has not prevented him from pursuing multiple, separate claims for VA disability benefits throughout the pendency of the current appeal. Additionally, the record does not show consideration of a finding of incompetence, nor does the Veteran himself assert that he is incapable of handling his own affairs. Rather, he merely states that his psychiatric disability often causes him to “lose track of the priorities” in his life and “habitually postpone completing key events”. Moreover, he admits that he is fully cognizant of the things going on around him. Based on this evidence, the Board finds the instant case does not involve the type of extraordinary circumstances for which equitable tolling may be applied. Thus, while sympathetic to the Veteran, the Board is bound by law and its decision is dictated by the relevant statutes and regulations. Furthermore, the Board is without authority to grant benefits simply because it might perceive such a grant to be equitable. 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Therefore, as VA did not receive the Veteran’s completed VA Form 21-686c for his dependent son, S.C., until January 31, 2016, and his completed VA Form 21-686c for his dependent spouse, M.C., until June 22, 2016, the assignments of February 1, 2016, and July 1, 2016, the first day of the month following receipt of the respective claims, were proper and, therefore, the claims must be denied. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Celli, 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.