Citation Nr: 21023373 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-36 885 DATE: April 20, 2021 ORDER An effective date earlier than February 1, 2008 for the award of increased compensation based on J.M.’s status as the Veteran’s dependent spouse is denied. FINDING OF FACT The Veteran first notified VA of his marriage to J.M. in January 2008. CONCLUSION OF LAW The criteria for an effective date prior to February 1, 2008 for payment of additional compensation benefits based on the status of J.M. as the Veteran’s dependent spouse have not been met. 38 U.S.C. §§ 1115, 1135, 5101, 5110; 38 C.F.R. §§ 3.4, 3.151, 3.400, 3.401.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1969 to April 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 determination of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in February 2021. A transcript of the hearing is of record. Effective Date A. Law An additional amount of compensation may be payable for a spouse, child, or dependent parent where a veteran is entitled to compensation based on disability evaluated as 30 percent or more disabling. 38 U.S.C. §§ 1115, 1135; 38 C.F.R. § 3.4(b)(2). Except as otherwise provided, the effective date of an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. VA regulation provides that the effective date for the payment of additional compensation for dependents will be the latest of the following dates: (1) date of claim; (2) date dependency arises; (3) effective date of the qualifying disability rating provided evidence of dependency is received within 1 year of notification of such rating action; or (4) date of commencement of Veteran’s award. 38 C.F.R. § 3.401(b). The term “date of claim” means the following, listed in their order of applicability: (i) date of 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. Id. With respect to the date of claim, a specific claim in the form prescribed by the VA Secretary must be filed in order for benefits to be paid to any individual under VA law. 38 U.S.C. §§ 501, 5101; 38 C.F.R. § 3.151. B. Analysis The Veteran states that he notified VA of his marriage to J.M. (the letters in the initials correspond to her first and middle names) in November 1998, shortly after their October 1998 marriage, but that VA did not process the paperwork at the time. See July 2017 VA Form 9 and Attached Statement; February 2021 Hearing Transcript. For the following reasons, the Board finds that the criteria for an effective date earlier than February 1, 2008 for the addition of J.M. to the Veteran’s compensation award as his dependent spouse are not met. The claims file contains a January 11, 2008 fax to VA by the Veteran of a marriage certificate showing his marriage to J.M. in October 1998, and a divorce decree showing his divorce from N.H. (the letters corresponding to the first and middle names of the individual) in December 1997. The file does not show earlier notice to VA of the Veteran’s marriage to J.M. The above documents were faxed less than two weeks after a December 2007 letter from VA to the Veteran informed him of a new monthly rate of compensation, and to advise VA immediately if his marital status changes. Given the chronological sequence and close proximity in time of the December 2007 letter and January 2008 fax, it seems likely the Veteran sent those documents at that time in response to the December 2007 letter. Whatever the case may be, there is no indication in the file that the Veteran earlier informed VA of his marriage to J.M. Accordingly, the effective date for the award of additional compensation based on J.M.s status as the Veteran’s dependent spouse could be no earlier than February 1, 2008. That date represents the first day of the month following the January 2008 notice to VA of his marriage to J.M. See 38 C.F.R. §§ 3.401(b); see also 38 C.F.R. § 3.31 (commencement of the period of payment). The effective date can be no earlier, since there was no claim or notice prior to January 2008, or an award of a qualifying disability rating within the preceding year. See 38 C.F.R. § 3.401(b). The Board has considered the Veteran’s statements that he sent VA notice of his marriage to J.M. in November 1998. The Board does not doubt the sincerity of his belief that he sent such notice at the time. Nevertheless, that statement alone is not sufficient to establish the fact. 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, 2021 U.S. App. Vet. Claims LEXIS 78 (No. 19-3687). The presumption may only be rebutted by “clear evidence to the contrary.” Schoolman v. West, 12 Vet. App. 307 (1999). The Board finds that the presumption of regularity applies to whether VA staff would have processed notice of the Veteran’s marriage to J.M. in November 1998 had it received such notice at that time, to include associating that notice with the claims file. His skepticism regarding the handling of paperwork by VA staff, as expressed at the Board hearing, does not in itself rebut the presumption, or support a finding of irregularity in terms of whether VA would have associated with the file an earlier notice from the Veteran of his marriage to J.M. or otherwise processed it. He has not submitted any evidence supporting his statements regarding an earlier submission, or showing a pattern of irregularity in VA’s handling of submissions of documents. Accordingly, as there is no evidence showing that VA received notice of his marriage to J.M. prior to January 11, 2008, the presumption of regularity is not rebutted, including by the Veteran’s unsupported assertion to the contrary. The Board is aware that although VA received the marriage certificate showing the Veteran’s marriage to J.M., and the divorce decree showing his divorce from N.H., in January 2008, it did not take action on those documents at that time; that is, it did not remove N.H. as the Veteran’s dependent spouse from the award or add J.M. to the award. Rather, it was not until after the Veteran submitted a VA Form 21-0538 (Status of Dependents Questionnaire) in May 2012 that VA recognized the change in status. Even then, it was not until May 2014 that VA took action on that change. More specifically, a May 2014 letter informed the Veteran that VA had received the VA Form 21-0538 in May 2012, and that it had been paying him additional benefits based on his former marriage to N.H. It notified him that N.H. was being removed from the award. Subsequently, the January 2016 determination—from which this appeal stems—removed N.H. from the award effective January 1, 1998 (the first day of the month following the Veteran’s December 1997 divorce from that individual) and added J.M. as a dependent effective February 1, 2008 (the first day of the month following VA’s receipt, in January 2008, of the marriage certificate establishing his marriage to J.M.). Clearly, there was a significant delay in VA’s processing of the Veteran’s January 2008 submission of the marriage certificate and divorce decree. This seems partly due to the fact that they were unaccompanied by a formal application or claim to change the status of the Veteran’s dependents at the time. Nevertheless, the February 1, 2008 effective date of the addition of J.M. to the award as the Veteran’s dependent spouse was based on VA’s recognition that it had received adequate documentation of that marriage in January 2008. By contrast, there is no documentation of an earlier submission of a marriage certificate or other notice of the Veteran’s marriage to J.M. prior to January 11, 2008. While there was a delay in VA’s taking action on that submission, the submission itself was added to the file. Under the presumption of administrative regularity, the absence from the file of earlier documentation or notice of the Veteran’s marriage to J.M. leads to the conclusion that a claim, evidence, or other notice of the Veteran’s marriage to J.M. was not received by VA prior to January 2008. Under the benefit-of-the-doubt rule, a claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In this case, that doctrine does not apply to whether VA received earlier notice or an earlier claim with respect to the Veteran’s marriage to J.M. Rather, as explained above, the presumption of regularity in the administrative process applies, and has not been rebutted. As an effective date earlier than February 1, 2008 for the award of increased compensation based on the addition of J.M. as the Veteran’s dependent spouse must be denied as a matter of law based on the date of claim, the benefit-of-the-doubt rule does not apply to that issue. See Sabonis v. West, 6 Vet. App. 426, 430 (1994). P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rutkin, 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.