Citation Nr: 21066225 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 17-44 316 DATE: October 29, 2021 ORDER An earlier effective date of June [REDACTED], 2011 for the addition of M. as a dependent spouse to the Veteran's award is granted. An earlier effective date of June [REDACTED], 2011 for the addition of H.P. as a dependent child to the Veteran's award is granted. An earlier effective date of June [REDACTED], 2011 for the addition of S.P. as a dependent child to the Veteran's award is granted. An earlier effective date of June [REDACTED], 2011 for the addition of L.P. as a dependent child to the Veteran's award is granted. FINDINGS OF FACT 1. Since September 2008, the Veteran has been in receipt of at least a combined 30 percent rating for his service-connected disabilities. 2. The Veteran and M. married on June [REDACTED], 2011. On the date of their marriage, H.P., S.P., and L.P. became the Veteran's stepchildren. The Veteran subsequently adopted H.P., S.P., and L.P. in November 2014. 3. The Department of Veterans Affairs (VA) first received evidence of the Veteran's marriage to M. within 1 year of their June [REDACTED], 2011 marriage date. CONCLUSIONS OF LAW 1. The criteria for an effective date of June [REDACTED], 2011 for the addition of M. as a dependent spouse to the Veteran's award are met. 38 U.S.C. §§ 1115, 5107, 5110; 38 C.F.R. §§ 3.4, 3.102, 3.204, 3.205, 3.206, 3.400, 3.401; Anania v. McDonough, 1 F.4th 1019 (Fed. Cir. 2021). 2. The criteria for an effective date of June [REDACTED], 2011 for the addition of H.P. as a dependent child to the Veteran's award are met. 38 U.S.C. §§ 101(4), 1115, 5107, 5110; 38 C.F.R. §§ 3.4, 3.57, 3.102, 3.204, 3.210, 3.400, 3.401; Anania v. McDonough, 1 F.4th 1019 (Fed. Cir. 2021). 3. The criteria for an effective date of June [REDACTED], 2011 for the addition of S.P. as a dependent child to the Veteran's award are met. 38 U.S.C. §§ 101(4), 1115, 5107, 5110; 38 C.F.R. §§ 3.4, 3.57, 3.102, 3.204, 3.210, 3.400, 3.401; Anania v. McDonough, 1 F.4th 1019 (Fed. Cir. 2021). 4. The criteria for an effective date of June [REDACTED], 2011 for the addition of L.P. as a dependent child to the Veteran's award are met. 38 U.S.C. §§ 101(4), 1115, 5107, 5110; 38 C.F.R. §§ 3.4, 3.57, 3.102, 3.204, 3.210, 3.400, 3.401; Anania v. McDonough, 1 F.4th 1019 (Fed. Cir. 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1982 to August 2008. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2017 decision of a VA Regional Offices (RO). Jurisdiction of the Veteran's claims file currently resides with the St. Louis, Missouri RO. In July 2021, the Veteran testified at a Board hearing before the undersigned. A transcript of the hearing is of record. Earlier Effective Dates for the Addition of Dependents In the March 2017 decision on appeal, the Veteran's current spouse M. and children H.P., S.P., and L.P. were added as dependents to his award, effective December 14, 2016. In assigning this date, the March 2017 decision explained that VA first received notice regarding the existence of these dependents on December 14, 2016, when the Veteran completed and returned a VA Form 21-0538, Status of Dependents Questionnaire. Accordingly, January 1, 2017 was the first day of the month following the effective date M., H.P., S.P., and L.P. were added to the Veteran's compensation award. See 38 C.F.R. § 3.31. After reviewing the evidence of record, the Board finds that earlier effective dates of June [REDACTED], 2011the date of the Veteran's marriage to M.are warranted for the addition of the above-identified dependents. Accordingly, the Board grants the Veteran's appeal. In support of this determination, the Board first notes that the law provides for the rates of disability compensation, and for payment of additional compensation for dependents of veterans who are at least 30 percent disabled. 38 U.S.C. §§ 1114(c), 1115, 1134, 1135. As indicated above in the Findings of Fact section, the Veteran has been in receipt of at least a 30 percent rating since September 2008. Accordingly, the Board finds that the Veteran has satisfied the initial eligibility requirement for the entire period relevant to her appeal. Awards of additional compensation for dependents are effective the latest of the following dates: (1) date of claim; (2) date dependency arises; (3) effective date of the qualifying disability rating provided evidence of dependency is received within one year of notification of such rating; or (4) date of commencement of Veteran'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 VA's request. 38 C.F.R. § 3.401(b)(1). In the instant case, the Veteran and M. were married on June [REDACTED], 2011. While VA concluded in the March 2017 decision on appeal that December 14, 2016 was the first date it became aware of M., H.P., S.P., and L.P.'s existence, the Board concludes that the Veteran informed VA of his new dependents at least within 1 year of his June [REDACTED], 2011 marriage date. Specifically, in February 2017, the Veteran spoke to a VA employee over the telephone regarding the status of his dependents. After providing additional information pertaining to M., H.P., S.P., and L.P., the Veteran informed the VA employee that he had previously updated his dependent information in 2011 around the time he married M. Consistent with his February 2017 statement, the Veteran provided a copy of a VA Form 21-686c, Declaration of Status of Dependents, in April 2017. This form was dated July 22, 2011, signed by the Veteran, and indicated that he had married M. on June [REDACTED], 2011. The Veteran also provided complete marital histories for himself and M.including his divorce from his previous dependent spouse B. on March [REDACTED], 2010, M.'s date of birth, and M.'s Social Security Number. Additionally, the Veteran provided the dates of birth, locations of birth, and Social Security numbers of H.P., S.P., and L.P. and identified them as his stepchildren. In his August 2017 substantive appeal, the Veteran provided additional information concerning his 2011 submission of a VA Form 21-686c as well as his experience with attempting to update his dependent information with VA. The Veteran first explained that he submitted his form some time in July 2011, but his changes in dependents were not quickly effectuated. He then indicated that he followed-up on several occasions via telephone but was consistently told that VA was experiencing a backlog and that his 2011 request could take more than 1 year to process. Lastly, the Veteran stated that, after waiting more than 1 year, he stopped following up and assumed that his form would be reviewed. The Veteran provided similar testimony concerning his attempts to update his dependents, beginning in 2011, during his July 2021 Board hearing. Additionally, the Veteran testified that he was a meticulous record keeper and that he kept copies of any documents he submitted to VA as well as to DFAS. Board Hearing Tr. at 7. Lastly, the Veteran stated that H.P., S.P., and L.P. were all members of his household since his marriage to M. on June [REDACTED], 2011. Id. at 10-12. In regard to his spouse M., the Board finds 38 C.F.R. § 3.401(b)(1)(i) to be dispositive in the instant case. Specifically, the Veteran married M. on June [REDACTED], 2011 and first notified VA of this marriage within 1 year of the marriage date. Additionally, at some point in 2011, he also notified VA that his prior marriage to B. had been terminated, effective March 16, 2010. 38 C.F.R. § 3.401(b)(1)(i) permits VA to assign the date of marriage as the effective date if "evidence of the event" is received within 1 year of the event. Here, the Board finds the Veteran's testimony concerning his submission of his July 2011 VA Form 21-686c to be credible. While a copy of the July 2011 VA Form 21-686c was not added to the Veteran's claims file within 1 year of the Veteran's June [REDACTED], 2011 marriage date, the Board concludes that the Veteran's credible testimony satisfies the common law mailbox rule such that it must be presumed that the July 2011 form was mailed, reached its destination, and was received by VA in normal time. See Anania v. McDonough, 1 F.4th 1019, 1027 (Fed. Cir. 2021). Accordingly, as evidence of the Veteran's marriage to M. was received within 1 year of their June [REDACTED], 2011 marriageand the Veteran informed VA that his prior marriage to B. terminated on March 16, 201038 C.F.R. § 3.401(b)(1)(i) requires that June [REDACTED], 2011 be assigned as the effective date for M.'s addition to the Veteran's award as a dependent spouse. The Veteran's appeal is granted. Relatedly, regarding H.P., S.P., and L.P., the Board first notes that 38 C.F.R. § 3.57, and the underlying statutory provision 38 U.S.C. § 101 (4), define the term "child" for VA purposes as (1) an unmarried person who is a legitimate child, (2) a child legally adopted before the age of 18, (3) a stepchild who acquired that status before the age of 18 and who is a member of the veteran's household or was a member of the veteran's household at the time of the veteran's death, or (4) an illegitimate child and: (A) is under the age of 18 years; or (B) before reaching the age of 18, became permanently incapable of self-support; or (C) is between the age of 18 and 23 and is pursuing a course of instruction at an educational institution approved by VA. See 38 C.F.R. § 3.57(a)(1). In this case, the record indicates that, beginning June [REDACTED], 2011, H.P., S.P., and L.P. qualified as "children" for VA purposes as, on that date, (1) they became the Veteran's stepchildren via his marriage to their mother M., and (2) they have continuously been members of the Veteran's household since June [REDACTED], 2011, including the period beginning in November 2014 where the Veteran adopted them. As the Board has previously concluded that the July 2011 VA Form 21-686c was received by VA within 1 year of the Veteran's June [REDACTED], 2011 marriage date, the Board finds that H.P., S.P., and L.P. must be added as dependents to the Veteran's award effective June [REDACTED], 2011 as VA received evidence of their existence within 1 year of them obtaining stepchild status. See 38 C.F.R. § 3.401(b). Thus, the Veteran's appeal is granted. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.S. Pettine, 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.