Citation Nr: 21009532 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 19-09 945 DATE: February 22, 2021 ORDER An effective date prior to June 5, 2018, for the addition of the Veteran’s spouse, C., to his award of Department of Veterans Affairs (VA) disability compensation is denied. FINDINGS OF FACT 1. The Veteran and C. were married in August 1991. 2. On October 21, 2008, the Veteran was in receipt of at least a 30 percent combined disability rating. 3. VA did not receive the Veteran’s claim for additional VA disability compensation benefits based on his marriage to C. prior to June 5, 2018. CONCLUSION OF LAW The criteria for an effective date prior to June 5, 2018, for the addition of the Veteran’s spouse, C., to his award of VA disability compensation have not been met. 38 U.S.C. §§ 1115, 5110 (2012); 38 C.F.R. §§ 3.4, 3.204, 3.401 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from August 1973 to May 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2018 decision of a VA Regional Office (RO). The Veteran testified at a January 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). Entitlement to an effective date prior to June 5, 2018, for the addition of the Veteran’s spouse, C., to his award of VA disability compensation. 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). 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. As this claim was not pending prior to March 24, 2015, the Board will apply the regulations effective 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. 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; 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). Here, the Veteran seeks an earlier effective date of October 21, 2008, the effective date of his combined disability rating of at least 30 percent, for the addition of C. as his dependent spouse to his award of VA disability compensation. The Veteran and C. were married in August 1991. The Board has reviewed all relevant evidence and finds no basis under the law to award an effective date earlier than June 5, 2018, for the addition of the Veteran’s spouse, C., as his dependent to his award of VA disability compensation. There is nothing in the record prior to that date that can be construed as a claim, pursuant to 38 C.F.R. § 3.1(p), for additional dependency benefits based on the Veteran’s marriage to C. As such, the RO has already assigned the earliest possible effective date for the addition of C. as the Veteran’s dependent to his award of VA disability compensation. The Board acknowledges the Veteran's argument that VA should have had constructive knowledge of his marriage to C., as he was employed by VA, and listed C. on all of his employment records since their marriage in 1991, including on his Federal employee life insurance application/policy and Thrift Savings Plan. He also listed her on his VA loan guaranty paperwork. However, the Board finds that the Veteran’s listing of his marriage to C. on his federal employment and loan guaranty papers does not impart to the adjudicators of the Veterans Benefits Administration (VBA) his intent to seek additional compensation benefits based on the existence of C. Thus, while acknowledging that the Veteran provided his marriage information on his federal employment and VA loan applications since his 1991 marriage, a claim seeking additional compensation benefits for his dependent spouse was not received by VA until June 5, 2018. See 38 C.F.R. § 3.155(a). The Board further acknowledges the Veteran’s testimony that he likely submitted the proper form within one year of the August 2009 decision notification letter informing him that he had the 30 percent combined disability rating establishing him to additional compensation for dependents and asking him to complete and submit VA Form 21-686c, Declaration of Status of Dependents, but that such completed claim may have been lost or otherwise misplaced by VA. Unfortunately however, this equivocal and uncorroborated testimony, particularly the Veteran’s statement that he cannot remember filling out the form, does not rise to the level of clear evidence to rebut the presumption of regularity. Consequently, there is no legal basis upon which to grant an effective date prior to June 5, 2018, for the addition of the Veteran’s spouse, C., as his dependent 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). 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.