Citation Nr: 21075028 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 17-21 642 DATE: December 17, 2021 ORDER An earlier effective date for the addition of S.G. as a dependent spouse to the Veteran's award is granted, effective May 1, 2007. FINDINGS OF FACT 1. An October 1998 rating decision granted service connection and awarded ratings combined to 30 percent effective December 1, 1998. An associated notification letter shows that the Veteran was informed he was to be paid as a Veteran with A.G. as a dependent spouse. He was notified that he should inform VA right away if there was a change in the status of his dependent(s). 2. The Veteran and A.G. divorced in April 2007. 3. The Veteran married S.G. on April [REDACTED], 2007. 4. Resolving all reasonable doubt in the Veteran's favor, and per the DRO deferred rating, the Veteran notified VA of his marriage to S.G. within a year of marriage. CONCLUSION OF LAW The criteria for an earlier effective date of May 1, 2007 for adding S.G. as a dependent spouse to the Veteran's award are met. 38 U.S.C. §§ 1115, 5107, 5110; 38 C.F.R. §§ 3.31, 3.204, 3.205, 3.400, 3.401(b). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the United States Army from November 1978 to November 1998. See DD Form 214. The Veteran was afforded a Board hearing in July 2021 before the undersigned, and a transcript has been associated with the record. 1. Earlier effective date for the addition of S.G. as a dependent spouse Effective Date Veterans having a 30 percent or more compensation for disability may be entitled to additional compensation for a dependent spouse, dependent parents, or unmarried children under 18 (or under 23 if attending an approved school) or when prior to age 18 the child has become permanently incapable of self-support because of mental or physical defect. 38 U.S.C. § 1135; 38 C.F.R. § 3.4(b)(2). Here, the Veteran has been in receipt of a 30 percent combined evaluation since December 1, 1998. See Rating Decision-Codesheet. Generally, the effective date of such an award of increased compensation is the latest of the following dates: (1) Date of claim. This term means the following, listed in their order of applicability: (i) Date of the veteran's marriage, or birth of his or her child, or adoption of a child, if the evidence of the event is received within one year of the event; otherwise, (ii) Date notice is received of the dependent's existence, if evidence is received within one year of VA's request; (2) Date the dependency arises; (3) Effective date of the qualifying disability rating, provided evidence of dependency is received within one year of notification of such rating action; (4) Date of commencement of the veteran's award. 38 C.F.R. § 3.401(b). Compensation for dependents pursuant to 38 U.S.C. § 1115 may also be reduced, upon certain events. The effective date of a reduction of pension or compensation by reason of marriage, annulment, or divorce on or after October 1, 1982, or death of a dependent of a payee, shall be the last day of the month in which such marriage, annulment, divorce, or death occurs. 38 U.S.C. § 5112(b)(2); 38 C.F.R. § 3.501(d)(2). Here, the former spouse, A.G. was removed as a dependent effective May 1, 2007. In the Veteran's January 1998 application for compensation, he identified A.G. as his spouse, and the resultant October 1998 rating decision indicated that the combined percentage evaluation awarded was 30 percent, and additional benefits were being paid for the Veteran's spouse, A.G. See January 1998 Veteran's Application for Compensation or Pension; see December 1998 Notification Letter. In addition, the notification of the rating decision to include compensation for A.G. as the Veteran's dependent requested the Veteran "[l]et us know right away if there is any change in the status of your dependents." See December 1998 Notification Letter. In December 2007, a Notification Letter regarding increased benefits was sent, and included a statement that the Veteran was receiving additional benefits for dependents, and a request that he notify the VA immediately of any change in status. See December 2007 Notification Letter. In May 2016, the RO proposed to reduce the Veteran's benefit for dependents, indicating that he had not completed a form they sent requesting information regarding his dependents, and then in August 2016 requested he respond with information regarding adding a new spouse. See May 2016 Correspondence; see August 2016 Correspondence. The Veteran replied indicating that he never received a prior letter in which he was supposed to reply. See July 2016 Correspondence. The Veteran was then provided an August 2016 notification that A.G. had been removed from his award effective May 2007, and S.G. had been added effective July 9, 2016, the date of receipt of Declaration of Status of Dependents. See August 2016 Notification Letter; see VA 21-686c Application Request To Add And/Or Remove Dependents. In September 2016 the VA received the Veteran's marriage certificate to S.G, showing April [REDACTED], 2007 as their date of marriage. Also, in September 2016, the Veteran submitted his Notice of Disagreement in which he appealed for an earlier effective date for the addition of his spouse. In a February 2017 deferred rating by a Decision Review Officer (DRO) it was indicated that action to add the Veteran's current spouse effective May 2007 should be taken, and that the Veteran had submitted a timely Form 686 showing his marriage to his current spouse. In the February 2017 Statement of the Case (SOC), the RO indicated that VA first learned of the Veteran's divorce from A.G. and subsequent marriage to S.G. on July 9, 2016, the date it received a VA Form 21-0538 Dependent's Status Questionnaire. The Veteran continued to appeal. The Board observes that in June 2018 a letter to the Veteran was returned to sender. At his July 2021 hearing, the Veteran's representative emphasized that in 2017 there was a DRO decision indicating that the earlier effective date for adding a spouse as a dependent should be granted from 2007 because of a timely Form 686. The Veteran's representative emphasized that in light of the DRO's statement, the absence of the timely Form 686 in VBMS suggested that it had been lost from the record. The Veteran and his representative are suggesting that VA did not process his request to add his new spouse in the normal course. After carefully reviewing the evidence of record, the Board agrees. As such, the Board grants an effective date of May 1, 2007, for the addition of S.G. as a dependent spouse. In asserting entitlement to earlier effective dates, the Veteran has challenged the acknowledged "presumption of regularity," under which it is presumed that government officials properly discharge their official duties in a regular course. Clear evidence to the contrary is required to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App. 62 (1992). Once the presumption of regularity has been rebutted by clear evidence, the burden shifts to VA to show that there was compliance with administrative procedure. In Jones v. West, the Court of Appeals for Veterans claims held that a statement of a claimant, standing alone, is not sufficient to rebut the presumption of regularity in RO operations. 12 Vet. App. 98, 100 (1998). In the instant case, the evidence of record specifically, the DRO deferred rating suggesting that the Form 686 was timely received, and the dependent should be added, in combination with the representative's statements at the hearing, provide clear evidence sufficient to rebut the presumption of regularity. Specifically, the Board first notes that there are inconsistencies in the record. For example, in May 2016 the Veteran wrote indicating he had received a letter suggesting that he had not responded to a prior letter to which he was supposed to reply. The Veteran adamantly indicated in all capital letters that he "NEVER RECEIVED SUCH A LETTER." Further, there is later mail in 2018 which was returned to sender and appears not to have reached the Veteran. These inconsistencies, along with the DRO's deferred rating showing the Veteran had timely reported his dependency information for his spouse such that he should be assigned a May 2007 effective date of marriage to S.G., lend credence to the representative's suggestion that the addition of S.G. as a dependent was not timely effectuated due to VA's mishandling of the Veteran's reported change in marital status. These factors leave the Board to conclude that there is clear evidence to rebut the presumption of regularity in the instant case. The burden therefore shifts to VA to show that there was compliance with administrative procedure. However, that burden has not been met as evidenced by the inaccuracies in record-keeping. Having found that VA did not comply with administrative procedure, the Board must assign a new effective date for the recognition of S.G. as a dependent on his award. The Board notes the date of marriage to S.G. was April [REDACTED], 2007 and the DRO deferred decision determined a May 2007 addition of dependent was warranted based on a timely received Form 686, suggesting that the Veteran notified VA within one year from the marriage date, pursuant to 38 C.F.R. § 3.401(b). For these reasons, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran remarried April [REDACTED], 2007, and notice was received within a year, such that an effective date of May 1, 2007, the date that his former spouse was removed from the award, is warranted for the addition of the Veteran's spouse as his dependent to his award of VA benefits. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Barner, 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.