Citation Nr: 20044546 Decision Date: 07/02/20 Archive Date: 07/02/20 DOCKET NO. 19-20 559 DATE: July 2, 2020 ORDER Entitlement to an effective date earlier than November 16, 2018, for recognition of C.P. as the Veteran’s spouse for the purpose of additional dependency compensation is denied. FINDING OF FACT 1. The Veteran and C.P. were married in May 2013. 2. The Department of Veterans Affairs (VA) did not receive a written statement notifying VA of the Veteran’s marriage to C.P. that could be considered a claim for additional dependency compensation for her until November 16, 2018. CONCLUSION OF LAW The criteria for an effective date earlier than November 16, 2018, for recognition of C.P. as the Veteran’s spouse for the purpose 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 on active duty in the United States Navy from June 1980 to June 2002. C.P. is his spouse. This matter come before the Board of Veterans’ Appeals (Board) on appeal from a January 2019 determination of a VA regional office. That decision removed the Veteran’s former spouse K.C. from the Veteran’s award effective March 1, 2013, and added C.P. to his award effective November 16, 2018. Although not presently before the Board, that decision also triggered an overpayment, for which the Veteran received a partial waiver in August 2019. Legal Standard Any veteran who is entitled to disability compensation, and whose disability is rated 30 percent or higher, 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, the record is clear that the Veteran has been in possession of at least a 30 percent combined disability rating since July 2002. 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 The Board finds it useful at the outset to describe the history of the Veteran’s award of additional dependency compensation for his various dependents. He first filed a claim for VA compensation in March 2002. In that claim form, he indicated he was married to A.C. and also identified several dependent children. His claim was granted, and he was notified in October 2002 that he was receiving additional dependency compensation for his four dependents. That notification letter explicitly informed him that he needed to inform VA right away if there was any change in the status of his dependents. The Veteran then submitted a VA Form 21-686c (Declaration of Status of Dependents) in November 2010 in which he informed VA of his June 2008 divorce from A.C. and his September 2008 marriage to K.C. VA processed this claim later in November 2010. VA informed him that K.C. would be added to his award effective November 1, 2010, and that A.C. would be removed from his award in July 2008. That action created an overpayment. He was again informed in bolded, italicized font that he needed to inform VA right away if there were any changes in the status of his dependents. After the November 2010 action, no subsequent written reports regarding any change in marital status were received until November 16, 2018. At that time, the Veteran completed VA Form 21-0538 (Status of Dependents Questionnaire) in which he informed VA that he was married to C.P. in May 2013. However, the Board notes that in the interim, the Veteran submitted additional claims for compensation. A claim for an increased rating was granted in January 2015, with an effective date of February 14, 2013, and the notification letter sent to the Veteran’s address of record informed him that he was being paid an additional amount K.C. That letter again reminded the Veteran that he needed to inform VA right away if there was any change in his marital status. The Veteran now contends that he did, in fact, submit notice to VA of his divorce from K.C. and his marriage to C.P. earlier than November 2018. In a statement received in May 2019, he reported that he had sent a copy of his marriage license, updated his records online, and obtained an identification card for C.P. in May 2013. He also indicated that a VA customer representative had informed him at that time that the departments within VA do not talk to each other and that problems with adding dependents were a common occurrence. The Veteran further stated that he updated his information specifically on VA’s website and sent his marriage license to VA in Indianapolis. The Veteran provided similar statements in his July 2019 VA Form 9. He stated again that he updated his marital information in the Defense Enrollment Eligibility Reporting System (DEERS) as well as on VA’s eBenefits website to add C.P. as his dependent. He indicated that he was informed by VA’s IT department that VA could not identify the specific nature of updates to the electronic systems and was unable to retrieve data older than a year. The Veteran reiterated that he did, in fact, change his dependents to add C.P. through that website in May 2013 immediately after their marriage. While the Veteran has been adamant in his assertions that he did inform VA of his marriage to C.P. shortly after their wedding, the electronic claims file simply does not include any written statement from the Veteran or on his behalf regarding that marriage until November 2018. Rather, the Veteran’s arguments that VA erred in some way by failing to recognize that he had submitted evidence of his marriage to C.P. represent a challenge to the presumption of regularity. 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). While the Board has no reason to doubt the sincerity of the Veteran’s belief, the applicable caselaw prevents the Board from relying only on his statements that VA erred in failing to discharge its official duties in handling its receipt of his evidence. The law requires that there instead be “clear evidence” that those duties and regular mailing practices were not followed. The only evidence to suggest that VA erred in following those practices are the Veteran’s current assertions. Those statements are an insufficient basis to find that the presumption of regularity has been overcome pursuant to Butler. Similarly, although the Board does not doubt the credibility of the Veteran’s statements that he updated his marital status in DEERS, that system is maintained by a different Federal agency. In general, only claims received by VA may be accepted for the purposes of establishing an effective date for VA compensation. Put simply, the first written claim or notification of the Veteran’s marriage to C.P. that appears in the claims file was on November 19, 2018. This occurred more than a year after the Veteran and C.P. were married in May 2013. As such, the earliest possible effective date for recognition of her as the Veteran’s spouse is the current effective date (i.e. the date VA first received notice of their marriage). The Board therefore finds that the criteria for an earlier effective date have not been met and the doctrine of the benefit of the doubt is not for application. The appeal is 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.