Citation Nr: 21070854 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 19-25 708 DATE: November 26, 2021 ORDER Entitlement to an effective date prior to July 1, 2017, for payment of additional dependency compensation for J.A.A. as a dependent child is denied. FINDINGS OF FACT 1. J.A.A. was born in July 2001 and is the Veteran's biological child. 2. The Veteran was first notified that he was granted at least a 30 percent combined disability rating in October 2014. 3. Prior to the Department of Veterans Affairs' (VA) June 19, 2017, receipt of an intent to file a claim form, VA did not receive a written claim for additional dependency compensation for J.A.A. CONCLUSION OF LAW The criteria for an effective date prior to July 1, 2017, for payment of additional dependency compensation for J.A.A. as a dependent child are not met. 38 U.S.C. §§ 1115, 5110; 38 C.F.R. §§ 3.4, 3.31, 3.400, 3.401(b). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1989 to September 1993. This matter comes before the Board of Veterans' Appeals (Board) from an October 2017 administrative decision issued by a VA Regional Office (RO) that added J.A.A. to the Veteran's award with payment beginning July 1, 2017. The Veteran ultimately perfected his appeal of that decision to the Board and testified before the undersigned Veterans Law Judge (VLJ) at a hearing conducted in July 2021. A transcript of the hearing has been associated with the claims file. The other issues certified to the Board on appeal will be the subject of a separate decision. Entitlement to an earlier effective date for additional dependency compensation The Veteran seeks payment prior to July 1, 2017, for payment of additional dependency compensation for his dependent child, J.A.A. This benefit is available to veterans who are entitled to disability compensation whose disability is rated not less than 30 percent. See 38 U.S.C. § 1115; 38 C.F.R. § 3.4(b)(2). The proper effective dates for additional dependency compensation on the basis of marriage is set forth at 38 C.F.R. § 3.401(b) and states 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 biological child is the date of 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 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. Effective March 24, 2015, VA included a requirement that all claims governed by VA's adjudication regulations be filed on a standard form. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155, 3.157. The amended regulations, however, apply only to claims filed on or after March 24, 2015. Prior to the March 24, 2015 amendments, VA accepted both formal and informal claims. An informal claim was any communication or action indicating intent to apply for one or more benefits. 38 C.F.R. § 3.155(a) (2014). There is no set form that an informal written claim must take, but it must have been in writing. 38 C.F.R. § 3.1(p). All that is required is that the written communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999). As noted above, the biological child at the center of the instant appeal was added to the Veteran's award with payment of this benefit effective July 1, 2017. This date was selected based on the receipt of a July 2017 VA Form 21-686c (Declaration of Status of Dependents), which is a form prescribed by the Secretary for claims for additional dependency compensation. It was received within a year of a June 2017 intent to file a claim form received by VA. VA's governing regulations state that if VA receives a complete application form prescribed by the Secretary within 1 year of receipt of an intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received. See 38 C.F.R. § 3.155 (b). An intent to file a claim must identify the general benefit (e.g., compensation, pension), but need not identify the specific benefit claimed or any medical condition(s) on which the claim is based. 38 C.F.R. § 3.155 (b)(2). Although the intent to file a claim form was received in June 2017, commencement of the period of payment begins no earlier than the first day of the calendar month following the month in which the award became effective. 38 C.F.R. § 3.31. J.A.A. was born in July 2001. That date predates the first instance the Veteran was awarded at least a 30 percent disability rating by more than a decade, and the Veteran does not contend that additional dependency compensation is warranted from J.A.A.'s date of birth. Rather, he seeks additional dependency compensation for J.A.A. dating back to the first date he was awarded a qualified disability rating. The Veteran was notified of this qualifying disability rating in October 2014. In the notification letter, he was informed that he was being paid as a single Veteran with no dependents. The letter also explicitly indicated he was eligible for additional compensation for dependents and that this additional benefit could be retroactive if he submitted a claim form within a year or if he notified VA of dependents on its eBenefits website. In the Veteran's November 2017 notice of disagreement and again in a January 2018 statement, he reported providing VA information regarding J.A.A.'s dependency at the time he submitted a claim in 2014 that ultimately led to the October 2014 rating decision granting him a 40 percent combined disability rating. He explained that he had sent this information via facsimile and to VA's evidence intake center. In a clarifying telephone call later in November 2017, the Veteran indicated he had submitted his dependents' birth certificates when he was awarded an increase in benefits pursuant to the October 2014 notification letter informing him of the possibility of additional compensation for dependents. He stated he had also called a VA representative and confirmed that VA had received this documentation. At the July 2021 hearing before the undersigned VLJ, the Veteran largely reiterated his earlier statements. He stated he had submitted copies of J.A.A.'s birth certificate at the time of the claim he indicated he had submitted in 2014 or earlier. The Veteran also testified that he called a VA employee to report that his son was within the age range for dependency compensation after he filed his claim. In response to questions from the undersigned VLJ about the specific places and addresses he sent J.A.A.'s dependency claim and birth certificate or other documentation, the Veteran reported that his VA representative had faxed this information on his behalf and that he had also mailed the information to a VA intake center with an oversized envelope and ample stamps. He recalled that the intake center address was not in California, but he could not recall the specific date of mailing. Although the Veteran is adamant that he did submit in writing a claim for additional dependency compensation along with a birth certificate for J.A.A. prior to July 2017, the Board's extensive review of the claims file has failed to uncover any evidence in the record that VA actually received any written statement that could be considered a "claim" for additional dependency compensation for J.A.A. prior to July 2017. As explained above, in order to succeed in his claim for an earlier effective date for additional dependency compensation, VA's statutes and regulations and governing caselaw require that VA receive a written claim for this benefit. The claims file simply does not include any evidence that such a written claim for additional dependency compensation for J.A.A. despite the Veteran's reports of having sent in such a claim on numerous occasions. To the extent he wishes to receive an earlier effective date for this benefit based on any telephone call to a VA employee, the Board notes that no such record of a call has been documented in writing in the claims file. As no claim for this benefit appears in the record prior to the June 2017 intent to file form, the Board turns to consider constructive receipt. Anania v. McDonough, 1 F.4th 1019 (Fed. Cir. 2021); Romero v. Tran, 33 Vet. App. 252 (2021). The Board acknowledges the Veteran's statements that he made multiple attempts to submit the requisite claim for additional dependency compensation for J.A.A. as well as his birth certificate. The Board does not doubt the sincerity of his belief that he submitted valid, timely claims. In this regard, there is a presumption of regularity in the administrative process whereby it is assumed that government officials "have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926); Romero v. Tran, 33 Vet. App. 252, 254 (2021). The presumption may only be rebutted by "clear evidence to the contrary." Schoolman v. West, 12 Vet. App. 307 (1999); Mindenhall v. Brown, 7 Vet. App. 271 (1994). It applies to the employees at the VA evidence intake center as well as the employees at the VA Regional Office that handled the Veteran's claim. With regard to the Veteran's contention that he did submit a claim for additional dependency compensation for J.A.A. and his birth certificate either in connection with his earlier claim or within a year of the October 2014 notification letter informing him of his award of at least a 30 percent disability rating, the Board finds that the presumption of regularity has not been rebutted and a finding of irregularity may not be made. A statement of nonreceipt coupled with other evidence can be enough to rebut the presumption of regularity of official acts of public officers. Romero, 33 Vet. App. at 264-65 (holding the presumption rebutted based on the Board's favorable factual finding of substantial evidence of a widespread problem with VA not mailing correspondence plus the counsel's statement of non-receipt). Here, the Veteran's statements of nonreceipt necessarily directs the Board to consider the common law mailbox rule. This rule states that "if a letter properly directed is proved to have been either put into the post office or delivered to the postman, it is presumed, from the known course of business in the post office department, that it reached its destination at the regular time, and was received by the person to whom it was addressed." Rosenthal v. Walker, 111 U.S. 185, 193 (1884). To invoke the common law mailbox rule, however, there must be "evidence demonstrating that the mail was 'properly addressed, stamped, and mailed in adequate time.'" Anania, 1 F.4th 1019, 1027 (quoting Rios v. Nicholson, 490 F.3d 928, 933 (Fed. Cir. 2007)). Here, the Veteran's reports regarding the specific actions he took to submit the claim for additional dependency compensation do not include sufficient information that would allow the Board to find that his claim was properly addressed, stamped, and mailed in adequate time. As explained above, the Veteran testified that he submitted the claim in an oversized envelope with sufficient postage, but the Veteran could only recall that the envelope was addressed to a VA facility that was not in California. In a similar vein, he did not provide information regarding the specific facsimile number he used to submit his claim via this method, and the Board is unable to evaluate whether it was correctly submitted. This evidence is not sufficient to show that the Veteran's mail was properly addressed to a VA facility. The Board concludes that the common law mailbox rule is not satisfied by this testimony. Anania, 1 F.4th at 1027. The claims file is also devoid of any other evidence that the Veteran submitted his claim to a proper address. For instance, the record does not contain a receipt of mailing, a certified mail receipt, or other similar evidence demonstrating an attempt to submit or mail a claim to VA. Accordingly, the Board finds that the presumption of regularity on the part of VA's employees charged with processing incoming claims has not been rebutted. Ultimately, no claim for additional dependency compensation for J.A.A. was received prior to VA's receipt of the June 2017 intent to file form. That date is more than a year after the Veteran was notified of a qualifying disability rating in October 2014 and is more than a year after the birth of J.A.A. As such, the earliest effective date for additional dependency compensation is the date the claim was received, which is the current effective date. The appeal is denied. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Whitelaw, 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.