Citation Nr: 0000516 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 97-03 006A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an effective date earlier than June 1, 1996, for an award of additional compensation benefits for the veteran's dependent children. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Gallagher, Counsel INTRODUCTION The veteran served on active duty from October 1976 to December 1979 and from December 1980 to April 1992. This matter comes before the Board of Veterans' Appeals (Board) from a May 1996 letter of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which informed the veteran that his disability compensation award had been amended and "included additional benefits for your spouse and children." The effective date for the additional benefits was June 1, 1996. The veteran has perfected an appeal to the Board of the effective date of June 1, 1996, for the additional compensation benefits for his children, alleging that the effective date should have been earlier than June 1, 1996. A hearing was held on March 8, 1999, in Nashville, Tennessee, before Bettina S. Callaway, a member of the Board who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7102(b) (West 1991) and who is rendering the determination in this case. FINDINGS OF FACT 1. In a letter dated March 4, 1993, the RO informed the veteran of a February 1993 rating decision which resulted in an increase in his combined service-connected disability compensation rating from 20 percent to 40 percent and included an enclosed VA Form 21-8764 which notified the veteran that veterans having a 30 percent or more service-connected condition may be entitled to additional compensation benefits for a spouse and unmarried children of a certain age. 2. In a letter dated June 15, 1993, the RO notified the veteran of a May 1993 rating decision and advised the veteran to read an enclosed VA Form 21-8764, noting that the form contained important information about the veteran's rights to receive VA compensation benefits; the RO also requested the veteran to send (1) a certified copy of his marriage certificate; (2) a completed VA Form 21-686c, giving the full name, date, place of birth, and social security number of each of his children, and the name and address of the person with whom each child lived; and (3) a certified copy of the public record of birth showing the names of both parents for each child. 3. In the June 15, 1993, letter, the RO also notified the veteran that, if the RO did not receive the evidence enumerated above "within one year from the date of this letter", VA would not be able to pay any additional benefits for any period before the date that the evidence was received. 4. On July 2, 1993, the RO received a VA Form 21-686c from the veteran along with a certified copy of his marriage certificate; the completed VA Form 21-686c provided names and birth dates for each of the veteran's three children, the name and address of the person having custody of each child; and a social security number for the veteran's son, [redacted], but no social security numbers for the veteran's two daughters. 5. In a letter dated July 19, 1993, the RO informed the veteran that his disability compensation award had been amended to include additional benefits for his spouse. 6. On May 14, 1996, the RO received another completed VA Form 21-686c from the veteran showing all his children's social security numbers along with birth certificates for each of the veteran's three children. 7. In a letter dated May 31, 1996, the RO informed the veteran that his disability compensation award had been amended to include additional benefits for his children, effective June 1, 1996. 8. During the pendency of this appeal, certain amendments to the law were made on November 2, 1994, that allow, in certain circumstances, acceptance of a claimant's written statement as to a relationship as proof of that relationship for the purpose of acting on such an individual's claim for benefits. CONCLUSIONS OF LAW 1. An effective date earlier than June 1, 1996, for additional compensation benefits for the veteran's two daughters is not warranted in this case. 38 U.S.C.A. §§ 1115, 5101(c)(1), (2), 5110(f), (g), 5124 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.4(b)(2), 3.204(a), 3.209, 3.216 (1999). 2. An effective date earlier than June 1, 1996, -- specifically, May 15, 1995, -- for additional compensation benefits for the veteran's son is warranted in this case. 38 U.S.C.A. §§ 1115, 5101(c)(1), (2), 5110(f), (g), 5124 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.4(b)(2), 3.204(a), 3.209, 3.216 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background. In a February 1993 rating decision, the RO, among other things, (1) granted service connection for weakness, left upper extremity due to Bell's palsy, and assigned a 20 percent disability rating for that disorder; (2) granted service connection for Bell's palsy, left face, and assigned a 10 disability rating for that disorder; and (3) granted an increased disability rating for service-connected tinnitus, assigning a 10 percent rating for that disorder. The effect of this rating decision was that the veteran's combined service-connected disability rating was increased from 20 percent to 40 percent disabling, effective September 24, 1992. In a letter dated March 4, 1993, the RO informed the veteran of the decision to increase his service-connected disability compensation and advised him of the disorders for which service connection had been granted and the disability rating assigned for each and informed him of the disorders for which service connection had been denied. In the last paragraph of the letter, the RO directed the veteran's attention to certain enclosures, namely, VA Form 4107, Notice of Procedural and Appellate Rights; VA Form 21-8764, Disability Compensation Award Attachment, Important Information; and VA Form 28-1900, Disabled Veterans' Application for Vocational Rehabilitation (Chapter 31). VA Form 21-8764 provided in pertinent part in 1993, Veterans having a 30 [percent] or more service-connected condition may be entitled to additional compensation for a spouse, dependent parents, or unmarried children under 18 (or under 23 if attending an approved school) or when prior to age 18 the child has become permanently incapable of self-support because of mental or physical defect. . . . VA Form 21-8764 (FEB 1990). In a May 1993 rating decision, the RO granted service connection for tinea pedis (claimed as skin condition of the feet) and for chronic obstructive pulmonary disease and spontaneous right pneumothorax (claimed as asthma) and assigned noncompensable ratings for these conditions. In a letter dated June 14, 1993, the RO notified the veteran that it was working on his claim but that it needed more information. The RO requested that the veteran complete and return a copy of VA Form 21-686c, Declaration of Status of Dependents and that he send a certified copy of his marriage certificate. In a letter dated June 15, 1993, the RO notified the veteran of the May 1993 rating decision. In the letter, the RO advised the veteran to read the enclosed VA Form 21-8764, noting that the form contained important information about the veteran's rights to receive VA compensation benefits. The RO requested the veteran to send a certified copy of his marriage certificate and, on VA Form 21-686c, to give the full name, date, place of birth, and social security number of each of his children, and the name and address of the person with whom each child lived. The RO asked the veteran to submit a certified copy of the public record of birth showing the names of both parents for each child. The RO noted in the letter that the veteran's application for VA compensation benefits (VA Form 21-526 which had been received by the RO in June 1992) did not contain his dependents' social security numbers and that benefits could not be paid under the law on behalf of any person for whom VA had no social security number. The RO requested that the evidence be sent as soon as possible and informed the veteran that, if the RO did not receive the evidence "within one year from the date of this letter", VA would not be able to pay any additional benefits for any period before the date that the evidence was received. On July 7, 1993, the RO received VA Form 21-686c with a certified copy of the veteran's marriage certificate. On the form, the veteran provided a social security number for his wife and for his youngest child, a son, but not for his two daughters. In a letter dated July 19, 1993, the RO informed the veteran that his disability compensation award had been amended and that "[i]ncluded are additional benefits for your spouse." On May 14, 1996, the RO received VA Form 21-686c, Declaration of Status of Dependents, on which the veteran provided the social security numbers for all three of his children; VA Form 21-674, Request for Approval of School Attendance; and copies of birth certificates for all three of his children. In a letter dated May 31, 1996, the RO notified the veteran that his disability compensation award had been amended and "included additional benefits for your spouse and children." The effective date for the additional benefits was June 1, 1996. The veteran appealed the June 1, 1996, effective date for additional compensation benefits for his children, stating in his notice of disagreement that he believed the effective date should be April 1992 and stating that he had not been informed until recently that his children "would affect my pay." In his VA Form 9 substantive appeal, the veteran noted that he had lived at the same address since May 1992 and that he has searched his files for a letter from the RO dated June 15, 1993, and that he could not find one. He stated, "I would definitely not wait 3 years to claim monies I should have been informed about earlier." He claimed he had not been informed in 1993 about the availability of additional compensation benefits for his children. At a hearing before the Board on March 8, 1999, the veteran testified that he had complied with the RO's request for information in the June 15, 1993, letter. He stated that he had "brought in the form that they needed". He further testified that he provided the VA with VA Form 646c and that the RO did not ask him for birth certificates of the children at the time that he submitted the form. He claimed that he had birth certificates for all of his children in 1993 and that the RO did not ask him to submit them at that time. He further stated that he assumed that between 1993 and 1996 he was being paid an additional dependency allowance for his children. The veteran stated that he was seeing his accredited representative about another matter in 1996 when the representative looked in a computer file and informed him that he was not being paid for his dependent children and at that time he submitted the needed documents and the VA adjusted his compensation payments. Analysis. The law provides additional compensation benefits for dependents of veterans who have a combined service-connected disability rating of not less than 30 percent. 38 U.S.C.A. § 1115 (West 1991). The law further provides, 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 that 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.A. § 5110(f) (West 1991). A claimant must provide the social security number of any dependent on whose behalf he or she is seeking benefits. 38 U.S.C.A. § 5101(c)(1), (2) (West 1991); 38 C.F.R. §§ 3.204(a), 3.216 (1999). On November 2, 1994, the law was amended with regard to the type of proof needed to establish the existence of any relationships for the purpose of a claim for benefits. 38 U.S.C.A. § 5124 (West 1991 & Supp. 1999); see Pub. L. 103-446, Title III, § 301(a), November 2, 1994, 108 Stat. 4657. The new section of Title 38, United States Code, stated, (a) For the purposes of benefits under laws administered by the Secretary, the Secretary may accept the written statement of a claimant as proof of the existence of any relationship specified in subsection (b) for the purpose of acting on such individual's claim for benefits. (b) Subsection (a) applies to proof of the existence of any of the following relationships between a claimant and another person: (1) Marriage. (2) Dissolution of a marriage. (3) Birth of a child. (4) Death of any family member. (c) The Secretary may require the submission of documentation in support of the claimant's statement if -- (1) the claimant does not reside within a State; (2) the statement on its face raises a question as to its validity (3) there is conflicting information of record; or (4) there is reasonable indication, in the statement or otherwise, of fraud or misrepresentation. 38 U.S.C.A. § 5124 (West 1991 & Supp. 1999). The implementing regulation was amended in November 1996. 38 C.F.R. § 3.204(a) (1999). Prior to the amendment to the law in November 1994, VA regulations called for the submission of certain types of evidence to establish the relationship of a child to the veteran, such as a certified copy or abstract of the public record of birth, in order to grant additional compensation benefits for a dependent child of the veteran. See 38 C.F.R. §§ 3.204, 3.209 (1992). Therefore, after the veteran's combined rating rose to 40 percent as a result of the May 1993 rating decision, the RO wrote to the veteran in June 1993 and requested that he send certified copies of his marriage certificate and of the public record of birth for each child. Where a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to appellant should and will apply unless Congress provides otherwise or permits the Secretary to do otherwise. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). Where compensation is awarded pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue. 38 U.S.C.A. § 5110(g) (West 1991 & Supp. 1999); see also 38 C.F.R. § 3.114 (1999). "This effective date rule prevents the application of a later, liberalizing law to a claim prior to the effective date of the liberalizing law." Rhodan v. West, 12 Vet. App. 55, 57 (1998). However, the second sentence of section 5110(g) provides, In no event shall such award or increase be retroactive for more than one year from the date of application therefor or the date of administrative determination of entitlement, whichever is earlier. 38 U.S.C.A. § 5110(g) (West 1991). The implementing VA regulation provides in pertinent part as follows, Where . . . compensation . . . is awarded or increased pursuant to a liberalizing law . . . .which became effective on or after the date of its enactment or issuance, in order for a claimant to be eligible for a retroactive payment under the provisions of this paragraph the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law . . . and that such eligibility existed continuously from that date to the date of claim . . . . The provisions of this paragraph are applicable to . . . claims for increase. . . . . (3) If a claim is reviewed at the request of a claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(3) (1999). In this case, the Board notes that the statute did not change during the pendency of this appeal, which began with the filing of the notice of disagreement in June 1996 with the May 31, 1996, letter which notified the veteran that additional compensation benefits had been granted based on his dependent children as a result of the RO's having received their birth certificates and the veteran's daughters' social security numbers on May 14, 1996. (The Board notes that May 14, 1996, is the actual "effective" date of the award of additional or increased compensation benefits and June 1, 1996, is the date marking the commencement of the payment period based on that effective date in accordance with section 3.31 of VA regulations which provides that the commencement of payment of an award will be "the first day of the calendar month following the month in which the award became effective." 38 C.F.R. § 3.31 (1999).) Rather, the statute changed more than a year prior to receipt of the claim for increase on May 14, 1996. However, the implementing regulation did change during the pendency of the appeal, i.e., in November 1996, raising the question of whether the Board should apply the rule in Karnas based on the change in the implementing regulation. The Board has decided that it need not reach that question in this case, however, because section 3.114(a)(3) by its own terms allows for the review of a claim at the request of a claimant more than 1 year after the effective date of a liberalizing law and authorizes payment of benefits awarded for a period of 1 year prior to the date of receipt of such a request. 38 C.F.R. § 3.114(a)(3) (1999). Therefore, the Board will construe the veteran's appeal for an effective date earlier than June 1, 1996, for the additional compensation benefits for his dependent children as a request for review of the evidence under the liberalizing law enacted in November 1994. Under the law as it existed prior to the amendments which added section 5124 to Title 38 in November 1994, an effective date earlier than June 1, 1996, for additional compensation benefits for the veteran's dependent children is not warranted in this case because the veteran did not provide the required documentation to demonstrate the relationship between him and his children within one-year of the RO's letter of notification of June 15, 1993. 38 U.S.C.A. § 501(a)(1) (West 1991); 38 C.F.R. §§ 3.204, 3.209 (1992). Specifically, he did not provide certified copies of the public record of birth for any of the children. In addition, he had not provided the social security numbers for his two daughters in 1993, although he did provide his son's social security number on VA Form 21-686c, received by the RO in July 1993. 38 U.S.C.A. § 5101(c)(1) (West 1991); 38 C.F.R. §§ 3.204(a), 3.216 (1999). The veteran has claimed and testified that the RO did not inform him in 1993 that the certified copies of the birth records were needed and that he never received the letter dated June 15, 1993, concerning this documentation. With regard to the former, the Board observes that the evidence of record -- namely the June 15, 1993, letter, as well as the March 4, 1993, letter of notification of the February 1993 rating decision with the enclosed VA Form 21-8764 -- demonstrates that the veteran was provided with clear notice that a veteran having a 30 percent or more service-connected condition may be entitled to additional compensation benefits for unmarried children of a certain age and that he was apprised of the type of information that was needed in order to provide those benefits and how long he had to submit it before he would no longer be eligible for any retroactive award of benefits based on submission of the evidence. See VA Form 20-8890 (the June 15, 1993, letter) ("Please send this evidence to us as soon as possible, preferably within 60 days. In any case, it must be received by VA within one year of this letter, otherwise, if entitlement to benefits is established, payments can be authorized only from the date VA receives the evidence."). Accordingly, the Board concludes that the veteran was notified that he was eligible for additional benefits and he was also notified of the type of evidence needed to obtain those benefits and the time period within which he should submit the evidence. Concerning the latter contention of the veteran, i.e., that he never received the June 15, 1993, letter, the Board notes that there is a presumption of regularity in the law that supports "'the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties'". Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1991), quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926); see Davis v. Brown, 7 Vet. App. 298, 300 (1994); Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992); Saylock v. Derwinski, 3 Vet. App. 394, 395 (1992). In Saylock, the United States Court of Appeals for Veterans Claims (Court) held that it must presume that the RO properly discharged its duties by mailing a copy of the RO decision to the "latest address then of record." Mason v. Brown, 8 Vet. App. 44, 54 (1995), quoting Saylock, 3 Vet. App. at 395; see 38 U.S.C.A. § 7105(b)(1); see also 38 U.S.C.A. § 5104(a) (Secretary to "provide" to each VA-benefits claimant timely notice of any VA-benefits adjudication decision accompanied by "an explanation of the procedure for obtaining review of the decision"); Rosler v. Derwinski, 1 Vet. App. 241 (1991) (holding that as to adjudications made after January 31, 1990, Secretary is required by section 5104(a) to advise VA claimants throughout claims adjudication process of their subsequent appellate rights as to those adjudications). Similarly, in this case, the Board concludes that the presumption of regularity attaches to VA's having sent the June 15, 1993, letter to the veteran, and the Board notes that the copy of the letter in the file shows that the letter was addressed to the veteran at the last address of record that VA had for him at that time which in this case has been the same address -- as the veteran acknowledged on his substantive appeal -- since May 1992. The veteran has offered no "clear evidence to the contrary" to rebut the presumption that the VA notified him of the evidence needed to award the additional compensation benefits for his dependent children. Ashley, 2 Vet. App. at 64-65. Accordingly, the Board concludes that the VA did not fail to give the veteran proper notice in 1993 of his eligibility for additional compensation benefits based on his dependent children and of the evidence needed to obtain those benefits. The Board will now examine whether an allowance of the additional compensation benefits for the veteran's dependent children may be granted prior to June 1, 1996, under the new provisions added to the law in November 1994. Those provisions are discretionary in nature; that is, they state that VA "may" accept "the written statement" of a claimant as proof of the existence of any relationship -- including the "birth of a child" or the relationship between a claimant and a child -- for the purpose of acting on such individual's claim for benefits. VA also "may" require the submission of documentation in support of the claimant's statement if (1) the claimant does not reside within a State; (2) the statement on its face raises a question as to its validity; (3) there is conflicting information of record; or (4) there is reasonable indication, in the statement or otherwise, of fraud or misrepresentation. In this regard, the Board concludes that the veteran's identification of his three children as his children, of their dates of birth, and of the names and address of the persons having custody of them -- a former wife, with regard to his daughters, and himself, with regard to his son, -- provided on his original application (VA Form 21-526), received in June 1992, and on VA Form 21-686c, received in July 1993, constituted a "written statement . . . of the existence of [a] relationship" between him and his children. 38 U.S.C.A. § 5124 (West 1991 & Supp. 1999). Moreover, the veteran lives in the state of Tennessee; the information provided on the two forms is consistent, not conflicting; the statement on its face raises no question as to its validity; and there is no reasonable indication, in the statement or otherwise, of fraud or misrepresentation. 38 U.S.C.A. § 5124 (West 1991 & Supp. 1999). Accordingly, the Board concludes that the written statement of the veteran identifying his three children constitutes sufficient proof of a relationship between him and them under the amendments to the law made in November 1994 and additional documentation is not needed in support of this statement under those new provisions. Nevertheless, the Board notes that -- although the veteran did provide a social security number for his son, [redacted], on the July 1993 VA Form 21-686c -- at no time prior to receipt of VA Form 21-686c on May 14, 1996, did the veteran provide social security numbers for his two daughters. This requirement is governed by a different provision of the law from that subject to the revisions of November 1994 and has been a consistent, unchanging requirement from the time of the May 1993 rating decision throughout the course of this appeal. 38 U.S.C.A. § 5101(c)(1) (West 1991); 38 C.F.R. §§ 3.204(a), 3.216 (1999). In the June 15, 1993, letter, the RO informed the veteran of this requirement and specifically notified him that his original application for VA compensation benefits (VA Form 21-526) did not contain his dependents' social security numbers. Because the veteran did not provide this information for his two daughters until May 14, 1996, the Board concludes that the effective date of June 1, 1996, the first day of the month following receipt of that evidence, is the appropriate effective date for an award of additional compensation benefits for the veteran's two daughters. 38 U.S.C.A. § 5101(c)(1) (West 1991); 38 C.F.R. § 3.216 (1999). However, because the veteran son's social security number has been in the record since July 1993, the Board concludes that an effective date earlier than June 1, 1996, for the additional compensation benefits for the veteran's son, [redacted], may be granted because not only was the son's social security number of record since 1993, in compliance with section 5101(c)(1), but all the information needed under the liberalizing provisions of section 5124, i.e., a written statement from the veteran as proof of the existence of a relationship between him and his son, were also of record from 1993. Therefore, the evidence shows that, with regard to his son, [redacted], the veteran "met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law", i.e., November 2, 1994, "and that such eligibility existed continuously from that date to the date of claim" for increased compensation benefits submitted on May 14, 1996. 38 C.F.R. § 3.114(a) (1999). Moreover, unlike the situation regarding the veteran's two daughters, the veteran is not barred from receiving additional benefits for his son earlier than June 1, 1996, by operation of the other provision of the law concerning social security numbers. 38 U.S.C.A. § 5101(c)(1), (2) (West 1991); 38 C.F.R. § 3.216 (1999). Therefore, additional benefits based on [redacted]'s dependency "may be authorized for a period of 1 year prior to the date of receipt of . . . request" for review under the provisions of the new law, i.e., May 14, 1996, which in this case is May 15, 1995. ORDER An effective date earlier than June 1, 1996, for an award of additional compensation benefits for the veteran's two dependent daughters is denied. An effective date earlier than June 1, 1996, -- specifically, May 15, 1995, -- for an award of additional compensation benefits for the veteran's dependent son is granted. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals