Citation Nr: 21069750 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 17-12 327 DATE: November 19, 2021 ORDER An effective date of September 10, 2014, but no earlier, for the addition of the Veteran's spouse, J., to his award of Department of Veterans Affairs (VA) disability compensation is granted. An effective date of September 10, 2014, but no earlier, for the addition of the Veteran's children, J., A., and K., to his award of VA disability compensation is granted. FINDINGS OF FACT 1. On September 10, 2014, the Veteran first submitted a claim for additional VA disability compensation benefits based on his February 2012 marriage to J. 2. On September 10, 2014, the Veteran first informed VA of J.'s March 1998 birth, A.'s March 2005 birth, and K.'s July 2007 birth. CONCLUSIONS OF LAW 1. The criteria for an effective date of September 10, 2014, but no earlier, for the addition of the Veteran's spouse, J., to his award of VA disability compensation, have been met. 38 U.S.C. §§ 1115, 5110 (2012); 38 C.F.R. §§ 3.4, 3.204, 3.401 (2021). 2. The criteria for an effective date of September 10, 2014, but no earlier, for the addition of the Veteran's children, J., A., and K., to his award of VA disability compensation, have been met. 38 U.S.C. §§ 1115, 5110 (2012); 38 C.F.R. §§ 3.4, 3.204, 3.401 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from March 1984 to December 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 decision of a VA Regional Office (RO). The Veteran testified at a July 2021 Board virtual hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims folder. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Ratings for Dependents Veterans who have service-connected disabilities rated as 30 percent disabling and higher may be entitled to additional compensation for dependents. 38 U.S.C. § 1115; 38 C.F.R. § 3.4(b)(2). As an initial matter, the threshold criteria of a minimum 30 percent disability rating for basic entitlement to additional payment for dependents have been met for the entire period on appeal. See 38 U.S.C. § 1115. When determining the effective date for an award of additional compensation for dependents, the effective date will be the last of the following dates: (1) the date of claim; (2) the date the dependency arises; (3) effective date of the qualifying disability rating provided evidence of dependency is received within a year of notification of such rating action; or (4) date of commencement of the service member's award. 38 C.F.R. § 3.401(b). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). A formal claim is one that has been filed in the form prescribed by VA. 38 C.F.R. § 3.151(a). An informal claim may be any communication or action indicating an intent to apply for one or more benefits under VA law. Thomas v. Principi, 16 Vet. App. 197 (2002). See also 38 C.F.R. §§ 3.1(p), 3.155(a) (2018). An informal claim must be written and must identify the benefit being sought. See Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999); Brannon v. West, 12 Vet. App. 32, 34-35 (1998). Regulations defining a "claim" were revised, effective March 24, 2015. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). The revision eliminated informal claims and required claims on specific forms. In this case, however, the applicable regulations are those prior to the revision, as this claim was pending prior to March 24, 2015. As such, the Board will apply the regulations effective prior to March 24, 2015 regarding defining a claim. To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). 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 notification of such rating action. 38 U.S.C. § 5110; 38 C.F.R. § 3.401. The "date of claim" for additional compensation for a dependent child is the date of the child's birth, 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 notification of such rating action. 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. The law provides for a presumption of regularity with regard to processes and procedures throughout the VA administrative process. See generally, Marsh v. Nicholson, 19 Vet. App. 381, 386-87 (2005); Crain v. Principi, 17 Vet. App. 182, 186 (2003); Redding v. West, 13 Vet. App. 512, 515 (2000). Yet we recognize that the presumption of regularity is not absolute and may be rebutted by the submission of "clear evidence to the contrary." Warfield v. Gober, 10 Vet. App. 483, 486 (1997). In this regard, the Court has held that the question of whether clear evidence exists to rebut the presumption of regularity is a question of law. See Crain v. Principi, 17 Vet. App. 182, 188 (2003). Clear evidence sufficient to rebut the presumption of regularity has been found 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, e.g., Fluker v. Brown, 5 Vet. App. 296, 298 (1993); Piano v. Brown, 5 Vet. App. 25, 26-27 (1993) (per curium); see also Crain, 17 Vet. App. at 188-89. If the Veteran succeeds in rebutting the presumption of regularity, the burden then shifts to VA to establish that regular administrative practices were, in fact, observed. See Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992); Butler v. Principi, 244 F.3d 1337, 1340 (Fed.Cir.2001) (the presumption of regularity allows courts to presume that what appears regular is regular, the burden shifting to the claimant to show the contrary). Regardless of the regulation governing effective dates of awards, payment of monetary benefits begins the first day of the month following the effective date. However, beneficiaries will be deemed to be in receipt of monetary benefits during the period between the effective date of the award and the date payment commences. 38 C.F.R. § 3.31. 1. Entitlement to an effective date prior to November 1, 2014, for the addition of the Veteran's spouse, J., to his award of VA disability compensation. In the present case, the Veteran requests an effective date of October 9, 2008, the date he initially became eligible for additional payment for dependents, for the addition of his spouse, J., as his dependent to his award of VA disability compensation. See December 2014 notice of disagreement; July 2021 Board hearing transcript. As an initial matter, the Board notes that the Veteran appeared to argue during the July 2021 Board hearing that he should be entitled to dependency benefits for his prior spouse, L., from October 9, 2008, the date he initially became eligible for additional payment for dependents, to July 2011, the date the Veteran and L. were divorced. However, the Board does not have jurisdiction over this issue, as the question of whether the Veteran was entitled to dependency benefits for L. as his spouse during the period from October 9, 2008 to July 2011 has not been adjudicated in the first instance by the RO. As this issue has not been adjudicated by the RO, it cannot be appealed to the Board and the Board does not have jurisdiction to address this issue. Therefore, the issue of entitlement to dependency benefits for the Veteran's former spouse, L., for the period from October 9, 2008 to July 2011 will not be addressed by the Board in this decision. In this case, the Veteran submitted a claim for additional dependency benefits based on his marriage to J. on September 10, 2014. See September 10, 2014 VA Form 21-686c, Declaration of Status of Dependents. In the October 2014 decision on appeal, the RO assigned an effective date of November 1, 2014 for the addition of J. as the Veteran's dependent spouse to his award of VA disability compensation. The Board has reviewed all relevant evidence and finds that an effective date of September 10, 2014, but no earlier, is warranted for the addition of the Veteran's current spouse, J., as his dependent to his award of VA disability compensation. This is based on the September 10, 2014 VA Form 21-686c, which is the first claim the Veteran submitted to VA for additional disability compensation benefits based on his marriage to J. However, there is nothing in the record to support an effective date prior to September 10, 2014 for the addition of the Veteran's current spouse, J., as his dependent to his award of VA disability compensation. The Board recognizes that the Veteran contends that the date of his marriage to J. should be the effective date for the addition of J. to his award of VA disability compensation. The Veteran had one year from his February 2012 marriage to J. to notify VA of the marriage, and file a claim for additional disability compensation benefits based such marriage, in order for the date of claim to be considered the date of marriage. However, the Veteran did not inform VA of his marriage to J. and file a claim for additional disability compensation benefits based such marriage until September 10, 2014, which is well outside that one-year period. As such, the Board has already assigned herein the earliest possible effective date for the addition of J. as the Veteran's dependent to his award of VA disability compensation. The Board acknowledges the Veteran's statements that he notified VA of his February 2012 marriage to J. by providing evidence of such marriage to either a representative or VA employee at Audie Murphy VA Medical Center (VAMC) shortly after such marriage. See March 2017 VA Form 9; July 2021 Board hearing transcript. However, as indicated, no such notification or evidence is present in the claims folder. Notably, the Veteran has not submitted any evidence or argument to corroborate his statements. The Board finds that the Veteran's uncorroborated statements do not rise to the level of clear evidence to rebut the presumption of regularity. Furthermore, to the extent that the Veteran is alleging that Veterans Health Administration (VHA) was aware of his marriage to J. and she was listed as his spouse in his medical records, such notice to VHA cannot be considered a claim for the purposes of entitlement to additional compensation for a dependent spouse, as notice to VHA for healthcare purposes does not identify an intent to seek additional compensation benefits based on the existence a dependent spouse. See 38 C.F.R. § 3.155(a). In addition, the Board recognizes that the Veteran contends that he informed DEERS (Defense Enrollment Eligibility Reporting System) immediately after his February 2012 marriage to J. See July 2021 Board hearing transcript. However, his report to DEERS does not constitute providing notice to VA of the change in dependency, as DEERS is a system of the Department of Defense and not a part of VA. Consequently, there is no legal basis upon which to grant an effective date prior to September 10, 2014, for the addition of J. as the Veteran's dependent spouse to his award of VA disability compensation. The Board sympathizes with the Veteran regarding the inequities he believes result in not being entitled to those dependent benefits at an earlier time. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board further observes that "no equities, no matter how compelling, can create a right to payment of the United States Treasury which has not been provided for by Congress." See Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992), citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990). The Board is bound by the law governing the assignment of effective dates in its determination in this case. See 38 U.S.C. § 7104(c). In summary, an effective date of September 10, 2014, but no earlier, is warranted for the addition of the Veteran's spouse, J., as his dependent to his award of VA benefits. 2. Entitlement to an effective date prior to November 1, 2014, for the addition of the Veteran's children, J., V., and K., to his award of VA disability compensation. Here, the Veteran contends that he is entitled to an effective date prior to November 1, 2014, for additional dependency benefit for his children, J., V., and K. He seeks an effective date of October 9, 2008, the date he initially established basic eligibility for additional compensation for dependents, for the addition of J., V., and K. as his dependent children to his award of VA disability compensation. On September 10, 2014, the Veteran first submitted a claim for additional dependency benefits for his children, J., V., and K., and informed VA of J.'s March 1998 birth, A.'s March 2005 birth, and K.'s July 2007 birth. In the October 2014 decision on appeal, the RO assigned an effective date of November 1, 2014, for the addition of J., V., and K. as the Veteran's dependent children to his award of VA disability compensation. The Board has reviewed all relevant evidence and finds that an effective date of September 10, 2014, but no earlier, is warranted for the addition of the Veteran's children, J., V., and K., as his dependents to his award of VA disability compensation. This is based on the September 10, 2014 VA Form 21-686c, which is the first claim the Veteran submitted to VA for additional disability compensation benefits based on recognition of J., V., and K. as his dependent children. There is nothing in the record prior to that date that would serve to inform VA of J., V., and K.'s births, and the Veteran had not previously submitted a claim for recognition of J., V., or K. as his dependent children. The Board notes that the Veteran had one year from the date of the June 2009 rating decision that established basic eligibility for additional compensation for dependents to submit a claim for additional dependency benefits for J., V., and K. However, Veteran did not submit a claim for additional dependency benefits for J., V., and K. until September 10, 2014, which is well outside the one-year period. As such, the RO has already assigned the earliest possible effective date for the addition of J., V., and K. as the Veteran's dependent children to his award of VA disability compensation. The Board acknowledges the Veteran's statements that he notified VA of his dependent children providing evidence of such children to either a representative or VA employee at Audie Murphy VA Medical Center (VAMC) shortly after such marriage. See March 2017 VA Form 9; July 2021 Board hearing transcript. However, as indicated, no such notification or evidence is present in the claims folder. Notably, the Veteran has not submitted any evidence or argument to corroborate his statements. The Board finds that the Veteran's uncorroborated statements do not rise to the level of clear evidence to rebut the presumption of regularity. Furthermore, to the extent that the Veteran is alleging that Veterans Health Administration (VHA) was aware of the birth of his children, J., V., and K., such notice to VHA cannot be considered a claim for the purposes of entitlement to additional compensation for dependent children, as notice to VHA for healthcare purposes does not identify an intent to seek additional compensation benefits based on the existence dependent children. See 38 C.F.R. § 3.155(a). In addition, the Board recognizes that the Veteran contends that he informed DEERS (Defense Enrollment Eligibility Reporting System) of the births of his children. See July 2021 Board hearing transcript. However, his report to DEERS does not constitute providing notice to VA of the changes in his dependents, as DEERS is a system of the Department of Defense and not a part of VA. For these reasons, there is no legal basis upon which to grant an earlier effective date. The Board sympathizes with the Veteran regarding the inequities he believes result from not being entitled to those dependents benefits at an earlier time. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; see also Harvey, 6 Vet. App. at 425. (Continued on the next page) In summary, an effective date of September 10, 2014, but no earlier, is warranted for the addition of the Veteran's children, J., V., and K., as his dependents to his award of VA benefits. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thomas, 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.