Citation Nr: 21076975 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-43 081 DATE: December 28, 2021 ORDER Entitlement to an effective date earlier than June 15, 2015, for the addition of M.B.G. to the Veteran's award as a dependent spouse is denied. FINDINGS OF FACT 1. The Veteran and M.B.G. were married in August 2002. 2. The Veteran was notified that he was awarded at least a 30 percent combined disability rating in November 2006. 3. The Department of Veterans Affairs (VA) did not receive a written claim or statement for additional dependency compensation for the Veteran's spouse prior to June 15, 2015. CONCLUSION OF LAW The criteria for an effective dater earlier than June 15, 2015, for additional dependency compensation for the Veteran's spouse have not been met. 38 U.S.C. §§ 1115, 5110; 38 C.F.R. §§ 3.57(a), 3.401(b). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably on active duty in the United States Air Force from November 1979 to May 1982. This matter comes before the Board of Veterans' Appeals (Board) from an October 2015 administrative decision of a Department of Veterans Affairs (VA) Regional Office (RO) that added M.B.G. to his award as a dependent effective June 15, 2015. VA was later notified that the marriage between the Veteran and M.B.G. was terminated by divorce in January 2012. Based on this information, VA removed M.B.G. from his award and triggered an overpayment that is not the subject of the current appeal. Rather, the only issue on appeal is whether the Veteran is entitled to additional dependency compensation for his spouse prior to June 2015. The Veteran appeared and testified before the undersigned Veterans Law Judge at a hearing conducted in December 2020. A transcript of the hearing has been associated with the claims file. The Board previously remanded this matter in July 2021 to allow VA to consider newly obtained evidence and issue a Supplemental Statement of the Case (SSOC). The agency of original jurisdiction (AOJ) issued the requested SSOC in August 2021 and has properly returned it to the Board for further appellate consideration. Entitlement to an effective date earlier than June 15, 2015, for additional dependency compensation for the Veteran's spouse is denied The Veteran seeks an effective date for his award of additional dependency compensation for his spouse that coincides with the effective date he first was awarded a 100 percent disability rating in December 2003. 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 or stepchild is the date of the 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. 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; where the claimant's dependent child does not reside with the claimant, the name and address of the person who has custody of the child; and the social security number of the other person. 38 U.S.C. § 5124; 38 C.F.R. § 3.204. Submission of statements and evidence regarding entitlement to compensation benefits may be submitted in writing to the RO or orally, but only by those VA employees who are properly delegated authorities who identify themselves as such and record the oral evidence in a particular manner. See 38 C.F.R. § 3.217 (submission of statements or information affecting entitlement to benefits). 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). The Veteran's current effective date in June 2015 has been assigned because that is the earliest date in the claims file that VA received a written claim for additional dependency compensation for M.B.G. The Veteran challenged the decision that assigned that effective date through his submission of an October 2015 notice of disagreement. He stated at that time that he had actually married his spouse in August 2002 and sought this additional compensation dating back to 2003 when he first was assigned at least a 30 percent combined disability rating. In a statement submitted later in October 2015, the Veteran contended that he submitted forms to add his spouse in 2003, 2005, 2006, 2008, 2009, 2011, and 2015. At the December 2020 Board hearing, the Veteran testified that shortly after he was notified in November 2006 of his 100 percent disability rating, he sent VA a marriage certificate documenting his marriage to M.B.G. He stated he requested that VA return the certificate at that time, but that VA had not returned this document. The Veteran also reported that he repeatedly called VA's 1-800 number asking for his wife to be added to his award and was informed that VA was working on the claim. He then stated he sent VA his authentic marriage certificate but was informed that VA could not find it and as a result he gave up on the process. Although the Veteran reports he repeatedly sent in claims forms or marriage certificates relating to his marriage to M.B.G., unfortunately the claims file does not include any such evidence prior to June 15, 2015. Instead, the claims file includes some pieces of evidence from that earlier time period appearing to suggest that the Veteran affirmatively informed VA that he was not married. For instance, while the claims file does include a VA Form 21-686c (Declaration of Status of Dependents), which is the form prescribed by the Secretary for a claim for additional dependency compensation, that was received in November 2006, the Veteran checked the box in that form indicating he was never married. At a VA psychiatric examination from August 2006, he also reported that he had not been married. Ultimately, 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 or statement for this benefit. The claims file simply does not include any such evidence that such a written claim or statement for additional dependency compensation for M.B.G. 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 1-800 number, VA has no evidence. The file contains numerous Reports of Contact and Reports of General Information but none reference any desire for additional dependency compensation. His other arguments appear to be challenges to the presumption of regularity in that he suggests VA erred in its procedures of receiving written claims and associating them with the correct claims file. Generally, government officials are presumed to "have properly discharged their official duties." Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992). The presumption of regularity may be overcome by "clear evidence" that VA did not have regular practices in discharging those duties or that they were not followed. Sthele v. Principi, 19 Vet. App. 11, 17 (2004). However, a claimant's mere statement of nonreceipt is insufficient for that purpose. See Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001); see also Romero v. Tran, 33 Vet. App. 252, 264-65 (2021) (providing that a statement of nonreceipt alone is not enough to rebut the presumption, but a statement of nonreceipt coupled with other evidence can satisfy the "clear evidence" standard). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has also addressed the circumstance of when a claimant contends that a mailing was not delivered to a recipient, albeit in the context of a notice of appeal (NOA) that was not received by the United States Court of Appeals for Veterans Claims (Court) pursuant to 38 U.S.C. § 7266. There, the Federal Circuit acknowledged the common law mailbox rule, which held 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. Rios v. Nicholson, 490 F.3d 928, 930-931 (Fed. Cir. 2007) (quoting Rosenthal v. Walker 111 U.S. 185, 193 (1884)). The Federal Circuit explained that this common law rule comes into play pursuant to 38 U.S.C. § 7266 when the Court contends that it did not receive the appellant's NOA and that it may be utilized by the appellant "to presume receipt upon a showing that he placed a properly addressed and stamped NOA in the USPS within sufficient time for it to have been received by the Court" within the applicable appeal period. Rios, 490 F.3d at 932. The Federal Circuit remanded that appeal back to the Court for further consideration of the mailbox rule. Upon remand, the Court issued Rios v. Mansfield, 21 Vet. App. 481 (2007) (Rios II). There, the Court held that the presumption of receipt permitted under the common law mailbox rule was not invoked lightly. "It requires proof of mailing, such as an independent proof of a postmark, a dated receipt, or evidence of mailing apart from a party's own self-serving testimony." Id. at 482-83. Thereafter, the Federal Circuit issued Anania v. McDonough, No. 2020-1086, 2021 U.S. App. LEXIS 17240 (Fed. Cir. June 10, 2021) (providing that a party's own self-serving statements can be used to invoke the mailbox rule). The Veteran has not provided any "clear evidence" that VA has erred in discharging its duties in this case regarding the receipt of mail or processing of claims for additional dependency compensation. The only evidence suggesting that VA may have done so are the Veteran's own assertions that he did send in a written claim. As the Federal Circuit held in Butler and CAVC in Romero, a claimant's mere statement of nonreceipt is not a sufficient basis to rebut the presumption of regularity. The record also contains no credible evidence of the type suggested by the Federal Circuit in Anania that might implicate the common law mailbox rule. As there is no earlier claim for benefits, either formal or informal, that was received by VA prior to June 15, 2015, the Board therefore cannot find that the criteria for an effective date prior to that date have been met for the award of additional dependency compensation. The doctrine of the benefit of the doubt is not for application and the claim must be denied. TANYA SMITH 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.