Citation Nr: 22011946 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 19-14 596 DATE: March 2, 2022 ORDER Entitlement to an award of additional compensation benefits for dependent parent mother is denied. FINDINGS OF FACT 1. The Veteran filed an incomplete VA Form 21-509 Statement of Dependency of Parents for his mother in May 2017. 2. In March 2018, VA sent to the Veteran's address of record, a letter that informed him that his dependency claim was not signed and therefore, incomplete, and that no further action would be completed until a completed application for benefits was received. 3. The Veteran's mother died in September 2018. 4. In November 2018, the Veteran filed a signed VA Form 21-509 Statement of Dependency of Parents, more than one year after the May 2017 incomplete claim and after his mother's death. CONCLUSION OF LAW The criteria for additional compensation based upon a dependent parent mother have not been met. 38 U.S.C. §§ 1115, 5102, 5110; 38 C.F.R. §§ 3.4, 3.59, 3.250, 3.401, 3.500, 3.660. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from March 1971 to March 1974. He also had service from March 1974 to November 1979, which resulted in an other-than-honorable discharge. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2018 notification letter of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a Board hearing in July 2021 before the undersigned Veterans Law Judge. The hearing transcript is associated with the record. An award of additional compensation on account of dependents based on the establishment of a disability rating in the percentage evaluation specified by law for the purpose shall be payable from the effective date of such rating; but only if proof of dependents is received within one year from the date of notification of such rating action. 38 U.S.C. § 5110(f); 38 C.F.R. § 3.401(b)(3). The effective date for additional compensation for dependents will be the latest of the following dates: (1) date of claim; (2) 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). 38 C.F.R. § 3.250 provides that conclusive dependency of a parent (other than one who is residing in a foreign country) will be held to exist where the monthly income does not exceed: (1) $400 for a mother or father not living together; (2) $660 for a mother and father, or remarried parent and spouse, living together; (3) $185 for each additional "member of the family" as defined in paragraph (b)(2). 38 C.F.R. § 3.250 (a)(1). The statute and regulations are clear that no payment of an additional amount of compensation may be paid to a veteran based on a dependency relationship, including a spouse, child, or parent dependent, where the dependency relationship has already been terminated. See 38 U.S.C. § 111; 38 C.F.R. §§ 3.4, 3.59, 3.500, 3.660. The Veteran's mother passed away in September 2018 as reflected in the death certificate received in November 2018. In May 2017, the Veteran submitted VA 21-509 Statement of Dependency of Parents for additional compensation based on a dependent parent. However, the form was not signed. In January 2018, the RO requested a copy of the Veteran's birth certificate establishing a parental relationship with his mother. The Veteran submitted the requested birth certificate in February 2018. In March 2018, the AOJ sent a letter to his address of record which was listed as his address of record since at least 2006. In that letter, the RO informed the Veteran that he did not sign the form and that VA regulations now require all claims to be submitted on a standardized form and signed. The RO requested that the Veteran complete and sign VA Form 21-509 Statement of Dependency of Parents and that no further action would be taken until a completed application for benefits was received. In an October 2018 letter, the RO informed the Veteran that he was notified in March 2018 that his application for dependency benefits for his mother was not signed and a completed and signed form had not yet been submitted. The RO also noted that the letter was not returned as undeliverable. In November 2018, the Veteran submitted a signed VA Form 21-509 Statement of Dependency of Parents. Under 38 U.S.C. § 5102(b), if a claimant's application for a benefit under the laws administered by the Secretary is incomplete, the Secretary shall notify the claimant and the claimant's representative, if any, of the information necessary to complete the application. If information that a claimant and the claimant's representative, if any, are notified under subsection (b) is necessary to complete an application is not received by the Secretary within one year from the date such notice is sent, no benefit may be paid or furnished by reason of the claimant's application. 38 U.S.C. § 5102(c). Under 38 C.F.R. § 3.155(c) upon receipt of a communication indicating a belief in entitlement to benefits that is submitted on a paper application form prescribed by the Secretary that is not complete as defined in § 3.160(a) of this section (which includes that a completed claim must be signed by the claimant or a person legally authorized to sign for the claimant), the Secretary shall notify the claimant and the claimant's representative, if any, of the information necessary to complete the application form prescribed by the Secretary. If a complete claim is submitted within 1 year of receipt of such incomplete application form prescribed by the Secretary, VA will consider it as filed as of the date VA received the incomplete application form prescribed by the Secretary that did not meet the standards of a complete claim. Further, as defined under 38 C.F.R. § 3.159, a substantially complete application means an application containing: (i) The claimant's name; (ii) His or her relationship to the veteran, if applicable; (iii) Sufficient service information for VA to verify the claimed service, if applicable; (iv) The benefit sought and any medical condition(s) on which it is based; (v) The claimant's signature; and (vi) In claims for nonservice-connected disability or death pension and parents' dependency and indemnity compensation, a statement of income . . . . If VA receives an incomplete application for benefits, it will notify the claimant of the information necessary to complete the application and will defer assistance until the claimant submits this information. Because the Veteran's May 2017 application for dependency benefits for his mother was not signed, it was an incomplete application. He was notified in March 2018 that the form must be signed and that no further action would be completed until a completed application for benefits was received. Therefore, to consider his claim filed from May 2017, he had until May 2018 to submit the signed form for dependency benefits, within one year of his incomplete application. However, the Veteran did not submit the signed form until November 2018. Although the Veteran submitted the completed application within one year of the March 2018 VA letter, it was filed one year after his incomplete application and after the Veteran's mother death, and therefore the claim is denied for the entire appeal period. The Veteran's claim cannot be considered as filed in May 2017 and is considered filed in November 2018, after his mother's death. The statute and regulations are clear that no payment of an additional amount of compensation may be paid to a veteran based on a dependency relationship, including a spouse, child, or parent dependent, where the dependency relationship has already been terminated. See 38 U.S.C. § 111; 38 C.F.R. §§ 3.4, 3.59, 3.500, 3.660. The Veteran's argument during the Board hearing was that he had not received the March 2018 notification letter. However, under the presumption of regularity in the administrative process, it is presumed that a claimant received proper notice by VA. See Boyd v. McDonald, 27 Vet. App. 63, 71-72 (2014) (holding that under the presumption of regularity, if notice is sent to the claimant's last known address of record, it will be presumed that VA properly discharged its official duties) (citing Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007)); see also United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). This presumption may only be rebutted with "clear evidence to the contrary." Schoolman v. West, 12 Vet. App. 307, 310 (1999). Such evidence includes "clear evidence that VA did not follow its regular mailing practices or that its practices were not regular." Boyd, 27 Vet. App. at 72 (quoting Crain v. Principi, 17 Vet. App. 182, 186 (2003)). The mere assertion that the notice was not received does not by itself constitute clear evidence rebutting the presumption. Id. However, the presumption of regularity may be rebutted where there is evidence that (1) VA used an incorrect address on the mailing in question or (2) the mailing was returned as undeliverable and "there were other possible and plausible addresses available to VA" at the time. Id. at 72. The March 2018 notification letter was sent to the Veteran's last known address, as well as to his attorney. For VA compensation purposes, notice means written notice sent to a claimant or payee at his or her latest address of record. 38 C.F.R. § 3.1(q). The letter was not returned as undeliverable by the United States Postal Service. The Veteran's address remained the same from at least 2006 to present. Notably, on the same day the March 2018 letter regarding the incomplete application was sent, VA sent an additional letter to the same address requesting information as to whether his stepchild was his wife's biological child, which the Veteran reported was the only letter he received during the Board hearing. In April 2018, the Veteran responded to that letter and submitted a statement that his stepchild was no longer his dependent and he also listed the same address of record. There was no other address of record, and the Veteran did not notify VA that he no longer lived at that address. There is no evidence that the letter concerning his dependency claim for his mother was sent to an incorrect address or an indication that the letter was returned as undeliverable. The Veteran's assertion that he did not receive the mailing is insufficient to rebut the presumption of regularity in the administrative process. Accordingly, the Board finds that VA discharged its duties by following its regular mailing practices. VA law also provides that persons dealing with the government are charged with knowledge of federal statutes and lawfully promulgated agency regulations "regardless of actual knowledge of what is in the [r]ebullitions or of the hardship resulting from innocent ignorance." See Morris v Derwinski, 1 Vet. App. 260, 265 (1991) (citing Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380 (1947); see also Dent v. McDonald, 27 Vet. App. 362, 382 (2015) (a beneficiary is charged with knowing the rules governing compensation). VA's compensation and pension system is inherently reliant on the accuracy of information provided by claimants. The Court of Appeals for Veterans Claims has held that persons dealing with the Government are charged with knowledge of Federal statutes and lawfully promulgated agency regulations, regardless of actual knowledge or hardship resulting from innocent ignorance. See Morris, 1 Vet. App. at 265; see also Velez v. West, 11 Vet. App. 148, 156- 57 (1998). Thus, even if the Veteran may have been unaware of the VA regulations and law, he was necessarily charged with knowledge of the regulation that he must submit a complete application for benefits that includes a signature. While the Board sympathizes with the Veteran's circumstances, the Board is bound by the governing legal authority, and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The United States Court of Appeals for Veterans Claims held that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 433 (1992). The Board is without the authority to disregard the applicable law, notwithstanding any extenuating circumstances that may have existed at the relevant time in question. Accordingly, the claim for additional VA compensation for a deceased dependent parent is denied. As the disposition of this claim is based on the law, the claim is denied as lacking legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah Campbell, 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.