Citation Nr: 21000820 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 18-49 686 DATE: January 6, 2021 ORDER The application to reopen the claim of entitlement to an additional compensation allowance for the Veteran's stepdaughter, Cr., is granted. The application to reopen the claim of entitlement to an additional compensation allowance for the Veteran's stepson, Co., is granted. REMANDED An effective date earlier than December 11, 2014, for the award of an additional compensation allowance for the Veteran's wife, C., is remanded. Entitlement to an additional compensation allowance for the Veteran's stepdaughter, Cr., is remanded. Entitlement to an additional compensation allowance for the Veteran's stepson, Co., is remanded. FINDINGS OF FACT 1. The RO denied the Veteran’s claim of dependency for his stepchildren in a December 2009 administrative decision, finding that evidence requested to process the claim had not been provided. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. 2. Since the December 2009 administrative decision, new and material evidence has been received. CONCLUSIONS OF LAW 1. The December 2009 administrative decision denying a dependency allowance for the Veteran’s stepchildren is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. 2. The criteria to reopen the dependency allowance claims for the Veteran’s stepchildren are met. U.S.C. § 5107; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1976 to July 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 6, 2017 administrative decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran is unrepresented. The Board contacted the Veteran via letters in August 2020 and November 2020, and the RO contacted the Veteran in August 2020 regarding problems with the VA forms intended to appoint representatives. The Board’s letter of November 2020 indicated that if the Veteran did not respond, he would be considered unrepresented. The Veteran did not respond to this letter. Reopening 1. The application to reopen the claim of entitlement to an additional compensation allowance for the Veteran's stepdaughter, Cr. 2. The application to reopen the claim of entitlement to an additional compensation allowance for the Veteran's stepson, Co. The RO denied the Veteran’s claim of dependency for his stepchildren in a December 2009 administrative decision, finding that evidence requested to process the claim had not been provided. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103. While the Veteran later asserts that he did not receive this notification and it was mailed to the wrong address, it was mailed to the address the Veteran supplied on his application of July 2009, just a few months prior. At the time he asserted the notice was mailed to the wrong address, the Veteran also asserted that he had not moved since 1999. The evidence received since the December 2009 decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, birth certificates and marital history were added to the claims file. This new evidence addresses the reason for the previous denial; that is, confirmation of dependency, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. REASONS FOR REMAND 1. An effective date earlier than December 11, 2014, for the award of an additional compensation allowance for the Veteran’s wife, C., is remanded. 2. Entitlement to an additional compensation allowance for the Veteran's stepdaughter, Cr., is remanded. 3. Entitlement to an additional compensation allowance for the Veteran's stepson, Co., is remanded. The Veteran is seeking additional compensation allowances, also known as dependency compensation, for his dependents, namely, his wife C., and stepchildren, Cr., and Co. The Veteran was awarded dependency compensation for his wife, C., effective December 11, 2014, in a September 2018 administrative decision, however, he asserts the dependency should be effective December 1999, the date of his marriage to C. The Veteran asserts that he filed a claim for the additional dependencies for C., Cr. and Co., in 1999 when he married C., at which time he also notified VA of his 1998 divorce from his previous wife, J. In support of his claim, he points to a VA Office of Inspector General (OIG) report regarding the improper destruction of veterans’ claims files at the Veteran’s regional office. He also points to a May 2017 decision from the Committee on Waivers and Compromises in which it partially granted his request for a waiver of an overpayment of dependency compensation for his ex-wife, J., from 1998 to 2009. The date the Veteran filed for dependency is a key element in determining whether the Veteran qualified for the additional dependencies for his stepchildren and whether an earlier effective date is warranted for the allowance for his wife. Claims for dependencies for his ex-wife, J., and his biological sons are of records as of August 1998. The first claim for dependency for his current wife, C., and stepchildren, on the record as it currently stands, is shown as in 2009. In July 2009, VA received Form 21-686c, Declaration of Status of Dependents, identifying his wife, C., and stepchildren, Cr. and Co. At the time, the Veteran noted in the form that, in December 1999, he filed a similar for which asked the same questions. He reported that he identified his new wife, C., as a dependent and asked if he was entitled to receive benefits for his stepchildren. He stated that he discovered that VA had not made the changes he was expecting when he was checking his death and living will information and called VA in June 2009 to discover the changes were not made. Throughout the claims process, the Veteran has vehemently asserted that records are missing and that he would have followed up in order to get the additional benefit. As pertinent to the reason for the remand, the Veteran sought and was granted a partial waiver for certain dependency payments VA made from 1998 to November 2015 for the Veteran’s ex-wife after they were married. This amounted to roughly $14,000. The RO had not removed ex-wife J., believing the first notice of the Veteran’s divorce was in November 2015. VA thus assessed the Veteran with an overpayment for the years he was paid dependency for her when they were not married. The Veteran applied for a waiver of the overpayment, stating that he informed VA close to his upcoming marriage to C. in December 1999 that he was divorced from J. and wanted to add his new wife, C. These are the same assertions he has made for the current dependency claims. In the May 2017 Decision on Waiver of Indebtedness partially waiving the debt, VA’s Committee on Waivers and Compromises (COWC) found that the Veteran reported the divorce from J. on July 13, 1999. The Board cannot determine the basis for this date, and it does not appear that the Veteran asserted this as a date. The fact that an exact date is identified by the COWC in the debt decision, whereas the Veteran has generally only used month and year, leads to Board to question whether there are missing records. A further fact that gives the Board pause is that there are no records in the claims file from August 25, 1998, until December 28, 2007. Accordingly, remand is warranted to attempt to locate any records from the period from August 28, 1998, until December 28, 2007. Particular attention should be paid to records or other basis for the COWC to conclude in May 2017 that the Veteran reported his divorce from J. on July 13, 1999. Attention should also be paid to records in the years 1998, 1999, and 2000. Attempts to reconstruct the file should be made. The Board cautions that the VA OIG report the Veteran cited does not appear to apply to the years 1998 and 1999. Instead, it appears to apply to the years 2011 to 2015, or so. Furthermore, to the extent the Veteran has been granted a waiver of overpayment for the payments made to him for the spousal dependency of ex-wife J. when they were not married, the Veteran has effectively been awarded spousal dependency for those years. Nonetheless, as the issues that would cause prejudice to the Veteran are the dependencies for the stepchildren, the Board finds remand is appropriate. The matters are REMANDED for the following action: 1. Reconstruct the record and upload all documentation related to the claim for dependency for the Veteran’s wife C., and stepchildren, to the electronic claims file. Specifically, attempt to locate any missing records from the period from August 28, 1998, until December 28, 2007. Particular attention should be paid to records or other bases for the Committee on Waivers and Compromises May 2017 finding that the Veteran reported his divorce from ex-wife J. on July 13, 1999. Attention should also be paid to records in the years 1998, 1999, and 2000. 2. If such records are unable to be associated with the record, make a formal finding of unavailability. (Continued on the next page)   3. If upon completion of the above action any benefit sought on appeal remains denied, the case should be returned to the Board after compliance with appellate procedure. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Rocktashel, 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.