Citation Nr: 21076158 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 19-33 899 DATE: December 22, 2021 ORDER Entitlement to an effective date earlier than October 1, 2017, for the payment of additional dependency compensation for spouse J.H. is denied. FINDINGS OF FACT 1. The Veteran and J.H. were married in October 2013. 2. The first instance that VA received a written communication that could be considered a claim for additional dependency compensation for J.H. was on September 28, 2017. CONCLUSION OF LAW The criteria for an effective date prior to October 1, 2017, for payment of additional dependency compensation for spouse J.H. 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 honorably in the United States Navy from October 1986 to October 2010. J.H. is his spouse. This matter comes before the Board of Veterans' Appeals (Board) from a September 2017 administrative decision of a Regional Office of the Department of Veterans Affairs (VA) that added J.H. to his award as a dependent spouse, with payment of additional compensation beginning October 1, 2017. Entitlement to an earlier effective date for payment of additional dependency compensation for J.H. The Veteran seeks payment prior to October 1, 2017, for the award of additional compensation for his dependent spouse, J.H. 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 spouse is the date of 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 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). Here, there is no dispute that the Veteran has been in possession of at least a 30 percent disability rating for the entire period of his marriage to J.H. The question before the Board is whether he is entitled to an earlier effective date for payment of additional dependency compensation for this spouse. The Veteran's current spouse was added to his award as a dependent based on VA's receipt of a September 2017 VA Form 21-686c (Declaration of Status of Dependents). VA determined at that time that the claim for additional dependency compensation for this spouse should be granted and added J.H. to his award, with payment to begin October 1, 2017. See 38 C.F.R. § 3.31 (payment of monetary benefits based on compensation begins the first day of the month following the effective date.). The Veteran disagrees with this effective date. He contends that, in fact, VA did receive a claim for additional dependency compensation for J.H. within months of their marriage. In his VA Form 9 and in attachments thereto, he states he was married in October 2013 to his spouse, and on November 13, 2013, he went to a naval base in Kings Bay, Georgia, to enroll J.H. into the Defense Enrollment Reporting System (DEERS) of the Department of Defense, to obtain an identification card, and to enroll his new spouse into Tricare. He reported that at that same visit, he had the identification card processing facility at that naval base submit a fax of the VA Form 21-686c reporting his new marriage to the VA fax number for VA's facility in Janesville, Wisconsin. Attached to the Veteran's VA Form 9 is a screenshot of internet log activity demonstrating that the Veteran accessed DS Logon on November 15, 2013, and November 21, 2013, at that website's beneficiary web enrollment site. He contends that this demonstrates his belief that VA was sent a claim to recognize J.H. as his spouse. The Veteran states in his substantive appeal that he was not immediately suspicious that J.H. had not been added given his understanding that VA can take a substantial amount of time to process dependency claims. The Veteran also attached to his substantive appeal a DD Form 1172-2 (Application for Identification Card/DEERS Enrollment). This form that was signed by the Veteran on November 13, 2013, includes a remarks section that appears to verify that a Department of Defense official did process a dependent spouse in the Department of Defense system and issued an identification card. The Veteran argues that this evidence establishes that VA was actually in receipt of a VA Form 21-686c on November 13, 2013, and that it was error on VA's part in the handling of this claim that resulted in J.H. not being added to his award at that time. He contends that he should not be penalized for VA's error and urges the Board to review his claims file, which demonstrates his prompt action in submitting claims and his failure to miss deadlines. The Board has examined the evidence and carefully considered the Veteran's arguments. The Board does not doubt the sincerity of his belief that a claim was faxed to VA in November 2013 or his belief that entitlement to an earlier effective date is warranted. However, the Board is bound by the statutes and regulations regarding the effective dates of VA benefits, as those statutes and regulations are interpreted by applicable Federal courts. Ultimately, the Board does not find that the criteria for an earlier effective date are met. The Board has extensively reviewed the claims file and has not found any evidence that VA received any claim for additional dependency compensation for J.H. prior to the September 2017 VA Form 21-686c. The only suggestion to the contrary are the Veteran's current contentions and his supporting documentation regarding internet logins and a Department of Defense form. His arguments that VA erred in its receipt or processing of his claim amount to a presumption of the regularity. Specifically, 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. Although the October 2021 representative brief suggests otherwise, it does not appear that the Veteran contends that he submitted a claim for VA benefits in November 2013. Rather, he states he instructed a Department of Defense official at a naval base to fax a VA Form 21-686c on his behalf. There is no evidence that any such Department of Defense employee actually submitted any such form or that the Veteran personally observed any such employee actually submit such a form to a proper VA office. The Board does not find that such a contention alone that the Veteran asked an employee at a different Federal agency to fax a form on his behalf can represent clear evidence that a VA employee failed to discharge the duties regarding the processing of a claim. The Board is also mindful of the recent decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit). In Anania v. McDonough, 1 F.4th 1019 (Fed. Cir. 2021), that court addressed the issue of the common law mailbox rule, which appears somewhat analogous to the current contentions regarding the sending of message via facsimile. 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, there is no evidence demonstrating that the Department of Defense employee actually followed through with the Veteran's request that the VA Form 21-686c be sent to VA in November 2013. There is a similar absence of evidence that any such employee properly inputted a fax number to a VA Regional Office or evidence intake center. As such, the Board does not find that holding in Anania would allow the Board to grant the Veteran's claim. Ultimately, the Board finds that there is simply insufficient evidence regarding VA's intake processing to establish that the presumption of regularity has been rebutted. As such, the Board cannot determine that a written claim for additional dependency compensation for J.H. was received in November 2013. The most recent claim for this benefit was received in September 2017. As that form was received well over a year after the Veteran's marriage to J.H., it is the date of VA's receipt of that form that is the earliest possible effective date for this benefit. The criteria for an earlier effective date are not met and the Board finds that the preponderance of the evidence is against the instant claim. M. Tenner 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.