Citation Nr: 20032908 Decision Date: 05/12/20 Archive Date: 05/12/20 DOCKET NO. 15-27 907 DATE: May 12, 2020 ORDER Entitlement to an effective date prior to June 26, 2012 for dependency allowance is denied. FINDINGS OF FACT 1. In September 2000, VA sent a letter to the Veteran requesting evidence of his dependents. 2. There is no indication in the claims folder that the September 2000 letter was returned as undeliverable. 3. A completed Declaration of Status of Dependents, VA Form 21-686c, was not received at the RO within one year of the September 2000 VA letter or prior to September 2013. CONCLUSION OF LAW The criteria for an effective date prior to June 26, 2012 for dependency allowance have not been met. 38 U.S.C. §§ 5110(f), 5111(a); 38 C.F.R. §§ 3.204, 3.205, 3.216, 3.401(b). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1981 to August 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 notice letter of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) during an October 2018 videoconference hearing. A transcript of that hearing is associated with the claims file. This issue was previously denied by the Board in a March 2019 decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2019 Order, the Court endorsed a joint motion for remand (JMR), vacated the Board’s March 2019 decision, and remanded the case for further action consistent with the terms of the JMR. Entitlement to an effective date prior to June 26, 2012 for dependency allowance The Veteran contends that he is entitled to retroactive dependency allowance from September 1, 2000 based upon his disability compensation benefits. The Veteran stated that he was unaware he was being paid as a single veteran with no dependents until 2012, when he promptly applied for dependency allowance. The Veteran asserts that he never received a September 2000 VA notification letter which requested information on his dependents’ status. A veteran who is in receipt of disability compensation of 30 percent or more is entitled to an additional allowance for each dependent. Individuals to whom benefits are being paid are required to certify, when requested, that any or all of the eligibility factors which established entitlement to the benefit being paid continue to exist. 38 C.F.R. § 3.652(a). When the required certification is received, benefits will be adjusted, if necessary, in accordance with the facts found. 38 C.F.R. § 3.652(b). In a September 2000 rating decision, the RO granted service connection for bilateral hearing loss, a right foot bunionectomy, a left foot bunionectomy, gout, hypertension, and a back disability. The Veteran has been in receipt of disability compensation of 40 percent or greater since September 1, 2000. In September 2000, VA sent a letter to the Veteran requesting evidence of his dependents. Specifically, he was asked to provide copies of divorce decrees and the social security numbers for his dependent children. The Veteran was notified that this information should be received within a year in order to receive back benefits. Review of the record shows that the Veteran did not submit this information within one year of the date of the September 2000 letter. Indeed, the requested information was not received until the Veteran submitted a VA Form 21-686c Declaration of Status of Dependents in September 2013 in connection with an August 2013 rating decision. The record reflects that the September 2000 notification letter in question was sent to an address on “[REDACTED]” rather than [REDACTED], as the Veteran noted on his Application for Compensation. During the October 2018 hearing, the Veteran reported that he was not sure if that error would lead to misdelivery, but that [REDACTED] was about one-third of a mile away and that he commonly received mail that was not his. The Veteran testified that, had he received the September 2000 letter, he would have provided the requested information to VA. There is a presumption of administrative regularity under which it is presumed that government officials have properly discharged their official duties. Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)). To rebut the presumption, in addition to asserting nonreceipt, the claimant bears the burden of producing clear evidence that VA did not follow its regular mailing practices or that its practices were not regular. See Ashley, 2 Vet. App. at 309. Absent the production of such clear evidence, delivery is proven. If, on the other hand, clear evidence is presented to rebut the presumption of regularity, the burden then shifts to the Secretary to establish proper mailing of notice in accordance with the applicable case law. See Baxter v. Principi, 17 Vet. App. 407, 410 (2004). An assertion of nonreceipt, standing alone, does not rebut the presumption of regularity in VA’s mailing process. Jones v. West, 12 Vet. App. 98, 102 (1998). Thus, although the Veteran asserts that he never received the September 2000 VA letter, this statement, alone, is not sufficient to rebut the presumption of administrative regularity. Instead, the clear evidence requirement mandates not only a declaration by the Veteran of nonreceipt, but additional evidence to corroborate the Veteran’s declaration, such as an addressing error by VA that was consequential to delivery. See Santoro v. Principi, 274 F.3d 1366, 1370 (Fed. Cir. 2001). Here, the Veteran points to the lack of a predirectional designation as clear evidence of an addressing error that was consequential to delivery. In Santoro, the United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that the purpose of any address is to supply information for delivery of mail to its intended destination. Hence, an address containing errors inconsequential to delivery is still proper. Id. In Clarke v. Nicholson, 21 Vet. App. 130, 133-35 (2007), the United States Court of Appeals for Veterans Claims (Court) noted that it has found clear evidence to rebut the presumption of regularity 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 Fluker v. Brown, 5 Vet. App. 296, 298 (1993) (finding the existence of clear evidence to rebut the presumption of regularity where the Board mailed a decision to [REDACTED], East Montevallo, AL 35115 when the claimant’s correct address was [REDACTED], Montevallo, AL 35115); Piano v. Brown, 5 Vet. App. 25, 26-27 (1993) (per curiam order) (finding the existence of clear evidence to rebut the presumption of regularity where the Board mailed its decision to [REDACTED], Philippines when the claimant’s correct address was [REDACTED], Philippines); see also Crain v. Principi, 17 Vet. App. 182, 188 (2002) (finding the existence of clear evidence to rebut the presumption of regularity when VA mailed a Statement of the Case to an incorrect ZIP code that was associated with a city located approximately 112 miles from the city corresponding to the correct ZIP code). However, the Court quoted the Federal Circuit in Santoro, stating that, “Even perfectly addressed mail at times suffers misdelivery.” Where an address, ex ante, enables delivery to the intended destination, then that address is proper, and any error is inconsequential. 274 F.3d at 1370. The Court went on to discuss the United States Postal Service’s (USPS) standard for deliverable mail, finding that while a complete address requires a directional designator, a complete address is not required for delivery. See 39 C.F.R. § 111.1. Rather, for an address that still includes all the minimum addressing elements required by the USPS, the omission of other elements, standing alone, is not sufficient to meet the clear evidence requirement that is necessary to rebut the presumption of regularity. Clarke, 21 Vet. App. at 134-35. The Board acknowledges that the RO omitted the “East” predirectional designator from the Veteran’s address when it mailed him the September 2000 notice of the decision. The address, while incomplete, still contained all of the necessary minimum address elements set forth in the Domestic Mail Manual because the address included the Veteran’s correct name, correct street and number, correct city and state, and correct ZIP code. In the JMR, the parties indicated that the Board failed to adequately address the existence of “[REDACTED]” within the Veteran’s ZIP code. Notably, in a footnote in the Clarke case, the Court indicated that they “might have reached a different conclusion” had there been more than one of the named street in question, distinguished only by directional designator. See Clarke, 21 Vet. App. at 135 n.3. The Court stated that in such cases, a directional designator “might be consequential to delivery.” Id., emphasis added. Here, however, the Board finds that the existence of a [REDACTED] does not render the predirectional designator consequential to delivery. Notably, there is no evidence that [REDACTED] exists within the Veteran’s ZIP code. Indeed, review of a map of [REDACTED] reveals only 4 addresses: [REDACTED], and [REDACTED]. Furthermore, the Veteran did not provide evidence that any other “[REDACTED]” designation, such as avenue, road, or drive, exists in his ZIP code, nor is there any indication on the map of the Veteran’s ZIP code that such exists. Accordingly, the Board does not find clear evidence that inclusion of the predirectional indicator of “East” and designation of “Street” would result in a different mailing outcome. Unlike the example in the Clarke footnote where there is potential for the same address in each of the four quadrants of Washington, D.C., in this case, there is only one address [REDACTED], namely [REDACTED], in the Veteran’s town of residence. The Board is particularly persuaded by the fact that there is no indication that the letter was returned as undeliverable. As noted by the Court in the Clarke case, when first-class and other endorsed mail is addressed using an address that lacks a required element or that is undeliverable for other reasons, even though the address contains all required elements, the USPS undertakes procedures that result either in delivery of the mail to the addressee or return of mail to the sender. See Domestic Mail Manual § 507.1.5.1. Given these facts, the Board finds that this situation is akin to that described in Clarke, and that the omission of the predirectional designation was inconsequential to the delivery of the September 2000 notification. This conclusion is bolstered by the fact that the record documents seven letters sent to the Veteran from 2001 to 2010 at the same address to which the September 200 rating decision was mailed—without the predirectional designation—none of which was returned as undeliverable. As such, the Board does not find clear evidence to rebut the presumption of regularity that VA mailed the Veteran a request for information on his dependents in September 2000. Additional allowance for dependents is payable from the effective date of the rating if proof of dependency is received within one year from the date of notification of such rating action. 38 U.S.C. § 5110(f). As the Veteran did not provide the information on his dependents within one year of the September 2000 rating decision, dependency allowance from that time is not warranted. As noted above, VA first received complete information regarding the Veteran’s dependents in September 2013, in connection with an August 2013 rating decision issued in response to a claim received June 26, 2012. Accordingly, June 26, 2012 is the proper effective date for dependency allowance. The Board is sympathetic to the Veteran’s claim for an earlier effective date for dependency allowance. However, the Board is bound by the law and is without authority to grant the appeal on an equitable basis. 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Because the disposition in this claim is based on the law, and not the facts of the case, the claim must be denied due to the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Connor, 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.