Citation Nr: 20009741 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 17-44 064 DATE: February 6, 2020 ORDER Entitlement to an effective date earlier than December 28, 2016, for recognition of F.W. as the Veteran’s spouse for the purpose of additional dependency compensation is denied. FINDINGS OF FACT 1. The Veteran married F.W. in May 2015. 2. The first instance VA received a written statement that can be considered a claim for dependency compensation based on recognition of F.W. as the Veteran’s spouse was on December 28, 2016. CONCLUSION OF LAW The criteria for an effective date earlier than December 28, 2016, for recognition of F.W. as the Veteran’s spouse for the purposes of additional dependency compensation have not been met. 38 U.S.C. §§ 1115, 5110(f); 38 C.F.R. §§ 3.4, 3.57, 3.204, 3.216, 3.401. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably in the United States Marine Corps from July 1981 to July 1985 and from March 1986 to November 1992 as well as in the United States Navy from January 2001 to March 2015. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 determination of a Regional Office of the Department of Veterans Affairs (VA). Legal Standard 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 for a spouse. See 38 U.S.C. § 1115; 38 C.F.R. § 3.4(b)(2). Here, there is no doubt that the Veteran has been in possession of at least a 30 percent combined disability rating for all periods relevant to the appeal. When determining the effective date for an award of additional compensation for dependents, the effective date will be the last of the following dates provided that sufficient evidence is received: (1) the date of claim; (2) the date the dependency arises; (3) the effective date of the qualifying disability rating; or (4) the 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 spouse is the date of the veteran’s marriage, 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 a request from VA. 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. Regardless of the regulation governing effective dates of awards, payment of monetary benefits based on compensation begins the first day of the month following the effective date. 38 C.F.R. § 3.31. Analysis In the Veteran’s April 2017 notice of disagreement, he challenged the effective date that has been assigned to the additional dependency compensation he was awarded for recognition of F.W. as his dependent spouse. He questioned why his spouse was not added to his award until December 2016 when he had in fact married F.W. in May 2015. In his August 2017 substantive appeal to the Board, the Veteran further contended that he had sent a prior declaration of status of dependents in May 2015 that he stated was “apparently never received or recorded.” He explained that the VA Form 21-686c that was received in December 2016 identifying F.W. as his spouse was actually the second notice of their marriage that he had sent to VA and the first notice was sent within a week of his marriage to F.W. While the Board is sympathetic to the Veteran’s position, it must follow the statutes and regulations governing effective dates of claims as interpreted by the United States Court of Appeals for Veterans Claims (Court) and higher appellate courts. Here, the Board cannot find that the criteria for an effective date earlier than December 28, 2016, is warranted. While the Veteran contends that he sent an earlier written notice of his marriage to F.W. than the VA Form 21-686c received in December 2016, the Board is simply unable to uncover any written document notifying VA of that marriage earlier than the December 2016 form. The claims file does include a May 2015 compensation and pension examination form relating to a compensation claim for a psychiatric disability. In that report, the Veteran was said to have been recently divorced and was at the time engaged. However, this document does not notify VA of the Veteran’s marriage to F.W. In essence, the Veteran now contends that there has been some sort of administrative mistake on the part of VA in failing to properly receive or process the written notice he contends he sent shortly after his marriage to F.W. Such arguments amount to a challenge to the presumption of regularity. (Continued on the next page)   Generally, government officials are presumed to “have properly discharged their official duties.” Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992). The presumption of regularity may be overcome by “clear evidence” that VA’s regular mailing practices are not regular or that they were not followed. Sthele v. Principi, 19 Vet. App. 11, 17 (2004). However, a claimant’s mere statement of nonreceipt is insufficient for that purpose. Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001). There is no clear evidence that VA’s practices with respect to accepting and responding to mail were not followed in this instance. Therefore, the Board does not find that the presumption of regularity has been overcome. Ultimately, the Board has no legal authority to assign an effective date earlier than the date that has currently been assigned. The December 28, 2016, receipt of the VA Form 21-686c was more than a year after his marriage to F.W. As such, the Board is precluded from granting an effective date earlier than the receipt of that written claim. The appeal must therefore be denied. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Whitelaw, Associate 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.