Citation Nr: 0006321 Decision Date: 03/09/00 Archive Date: 03/17/00 DOCKET NO. 96-45 122 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an effective date, prior to February 1, 1996, for payment of additional compensation based on recognition of a dependent spouse and child. 2. Entitlement to an initial rating in excess of 10 percent for post-traumatic stress disorder prior to February 19, 1998. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Mark J. Swiatek, Counsel INTRODUCTION The veteran had active military service from June 1968 to August 1969. The veteran brought a timely appeal to the Board of Veterans' Appeals (the Board) from a decision in February 1996 of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas to deny entitlement to additional compensation based on recognition of the veteran's spouse and dependent child prior to February 1, 1996. The Board in May 1997 remanded the case to the RO to honor the veteran's request for a hearing. A RO hearing was conducted in August 1997. In the Board remand the RO was advised that the veteran had filed a notice of disagreement with a decision to deny waiver of overpayment. The veteran in February 1999 advised the RO in writing that he had withdrawn the appeal for waiver of overpayment. The issue of an increased initial rating for PTSD rated 10 percent prior to February 19, 1998 is addressed in the remand portion of this decision. FINDINGS OF FACT 1. The veteran had been in receipt of VA disability compensation since 1969; he filed with VA in a timely manner the necessary documentation to establish entitlement to additional compensation for a dependent spouse and children from his marriage in 1969 and to N. in 1985. 2. The veteran reported in a VA information form completed in July 1991 that he was currently married to N. with one child. 3. In the development of a claim for increase the veteran filed in late 1992, the RO obtained VA medical records that included a report of hospitalization from October 29, 1992 wherein the veteran was reported as married with three children. 4. In a VA dependent status questionnaire the veteran competed in January 1996 he reported his marriage to J. on March 27, 1992 and the termination of his marriage to N. in September 1991 and named two minor children. 5. In February 1996, after review of additional information, the RO advised the veteran that payment of additional compensation for his spouse J. and her daughter was effective from February 1, 1996. 6. In August 1999, after receipt of additional VA medical records dated in October 1992 and January 1993 that included reference to J. as the veteran's spouse, the RO continued the denial of entitlement to additional compensation for his spouse and child prior to February 1, 1996; the additional VA medical records were received at the RO in October 1998. CONCLUSION OF LAW The criteria for an effective date for recognition of the veteran's spouse J. and dependent child for the purpose of additional compensation retroactive to March 27, 1992 have been met. 38 U.S.C.A. §§ 5107, 5110 (West 1991 and Supp. 1999); 38 C.F.R. §§ 3.155, 3.400, 3.401(b) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The record shows that the veteran indicated no current or prior marriage when he filed his initial application for VA compensation in 1969. In May 1970 he submitted evidence of his marriage in late 1969 and the existence of a dependent child. In late 1970 he submitted to VA evidence of the birth of his daughter several months earlier. The record shows that VA adjusted his compensation award to reflect the change in dependents and advised him accordingly. Thereafter, the record shows that the veteran had occasional contact with VA regarding his service-connected disabilities. A benefit award letter issued in late 1983 reminded him of the obligation to promptly inform VA of any change in dependent status. He did so when he contacted VA in May 1985 to inform the agency of his divorce in April 1985 and that he retained custody of the two children. The RO in June 1985 advised him of the change in his compensation award. The veteran in September 1985 provided VA documentation of his marriage to N. in May 1985. He also returned a completed a VA Form 21-686c "DECLARATION OF MARITAL STATUS" and the RO in late 1985 advised him of the adjustment to his compensation award. In 1986 and 1987 he completed VA forms that were required to continue dependent status of his son. The veteran in early 1988 provided VA with documentation for the birth of A. several months earlier and a current VA Form 21-686c. The RO acknowledged the change in dependent status in June 1988. During the next several months the veteran completed VA forms regarding his daughter's continued school attendance and the RO in April 1989 advised him of the current award and future adjustments to his compensation award that would occur as a result of a change in dependent status. The RO in April 1990 adjudicated the veteran's recently filed claim for increase. The VA form completed in April 1990 that contained information pertinent to the compensation award listed N. as his spouse. The award letter noted that additional benefits were provided for his spouse and child. In July 1991 he provided Social Security Administration information to VA wherein he identified N. as his spouse. The form and notice letter were issued from the Houston VARO. The next correspondence from the veteran in the claims folder consists of his correspondence in late 1992 and early 1993 wherein he reported VA hospitalization that began in late 1992 and claimed entitlement to increased compensation. On the statement dated in November 1992 is entered in a different color ink a handwritten request to transfer the "C" file to the Waco VARO. The RO in early 1993 requested and received VA treatment records. In the summary of recent VA hospitalization that began on October 29, 1992 he was described as married with three children. A March 1993 consultation report noted that his wife was present. The record shows that the disability compensation award letter issued after an April 1993 VA rating decision informed the veteran that additional benefits were included for his spouse and child. He was advised of the need to inform VA immediately of any change in the status of dependents. The notice was issued from the Waco VARO. The VA form in the claims file corresponding to the May 1993 award letter did not list any spouse by name in the space provided on the form but did list his son A. as a child. The next document in the veteran's claims file is a VA questionnaire regarding dependents that he completed in January 1996. He advised VA that his marriage to N. was terminated in September 1991, that he married his current spouse J. on March 27, 1992, and that he had two children under age 18, one being J's. daughter, and A. of whom N. had custody. Based upon the information the veteran provided, the RO in February 1996 advised him that his compensation would be reduced from October 1991 on account of the termination of his marriage to N. This resulted in an overpayment calculated in the amount of $3,914 of which waiver was denied. He was advised that additional compensation for J. and her daughter would be no earlier than February 1, 1996. The veteran in February 1996 provided the RO with copies of J's final divorce decree dated in February 1992, proof of marriage to J. on March 27, 1992 and her daughter's birth certificate. He also stated in a VA Form 21-686c that he had mailed certified copies of the pertinent documents to the Houston VARO in May 1992 and that they should be on file. He made essentially the same arguments in disagreeing with the RO determination regarding dependent status and stated that J. was shown as his wife when VA hospitalized him in late 1992. In his substantive appeal the veteran added that he had always notified VA of changes in dependents and that VA either lost or misplaced the records. His personal hearing testimony in August 1997 is an elaboration on earlier contentions regarding the mishandling of information regarding his spouse and dependents after he remarried in 1992. The veteran in late 1998 submitted a copy of a VA form used for nursing assessment notes on admission. The form showed his admission on October 29, 1992 and that J., his wife, was listed as the emergency contact. He provided a copy of a VA health care power of attorney dated in January 1993 appointing J. and a page from a VA treatment preferences form dated in January 1993 that named J. to receive his cremated remains. Criteria Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. (b) A communication received from a service organization, an attorney, or agent may not be accepted as an informal claim if a power of attorney was not executed at the time the communication was written. (c) When a claim has been filed which meets the requirements of § 3.151 or § 3.152, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A § 5110; 38 C.F.R. § 3.400(q)(ii)(r). The effective date for additional compensation or pension for dependents shall be the latest of the following dates: (1) Date of claim. This term 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 1 year of the event; otherwise. (ii) Date notice is received of the dependent's existence, if evidence is received within 1 year of the Department of Veterans Affairs request. (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. 38 U.S.C. 5110(f)); 38 C.F.R. § 3.401(b). Effective date of pension or compensation benefits, if otherwise in order, will be the date of receipt of a claim or the date when entitlement arose, whichever is the later. A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or Department of Veterans Affairs issue, if the report relates to a disability which may establish entitlement. Acceptance of a report of examination or treatment as a claim for increase or to reopen is subject to the requirements of Sec. 3.114 with respect to action on Department of Veterans Affairs initiative or at the request of the claimant and the payment of retroactive benefits from the date of the report or for a period of 1 year prior to the date of receipt of the report. 38 C.F.R. § 3.157. A pending claim is an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160. Analysis Initially, the Board finds that the veteran's claim is well grounded within the meaning of the applicable law and regulations as discussed in Murphy v. Derwinski, 1 Vet. App. 78 (1990). The pertinent records have been obtained and the veteran has not referred to relevant records that have not been located. Robinette v. Brown, 8 Vet. App. 69 (1995). The veteran was afforded a hearing at the RO and VA records that the Board finds necessary for an informed determination were obtained as a result of the remand. The Board finds this record adequate for an informed determination of the issue on appeal. Stegall v. West, 11 Vet. App. 268 (1998). The law and regulations governing the appropriate effective date in general is set out in 38 U.S.C.A. § 5110, and specifically for recognition of a spouse and dependent children in 38 C.F.R. §§ 3.400, 3.401(b) (1999). The regulations provide basically that the effective date shall be the latest of the date of claim, in this case of marriage, if evidence is received within a year of the event, otherwise date of notice of the dependent's existence if evidence is received within a year of VA request. The basis for the February 1996 effective date for recognition of the veteran's spouse J. and dependent child determined by the RO is readily apparent from the record. It is argued that the effective date therefor should be established from 1992, and the Board believes that the record does support an earlier date than the one selected by the RO. The RO has assigned an effective date of February 1, 1996, and the veteran has appealed to the Board for the assignment of an earlier effective date. The question before the Board is whether the evidence shows that the requirements for recognition of his current spouse J. and dependent child were met earlier under the applicable regulations. The record shows that the veteran sought recognition for a spouse and dependent children with each prior marriage in a timely manner. Under 38 C.F.R. § 3.401, the determinative factor is when entitlement arose, or, in other words, when it was established by the evidence that dependency existed. In view of the record prior to the current effective date, the Board finds the evidentiary record shows that the veteran did timely submit required evidence. The Board finds that his marriage to J. and the existence of dependent children was known at a time to permit an effective date for their recognition prior to the award date of February 1, 1996. The Board finds a plausible basis for the assignment of an effective date earlier than the date assigned by the RO, in view of the information on file recently received from the veteran and other evidence received prior to that time. It is noteworthy that the veteran had in the past mentioned previous marriages in a timely manner and he did establish dependency for VA compensation purposes in 1970 and 1985. The veteran obviously does not contend that he was unaware of the additional allowance for dependents and spouse, misled by any VA correspondence, nor does he argue being poorly advised of the means to change this entitlement. From a review of the claims folder there appears to be no plausible basis to find other than the veteran prosecuted the claims earlier than in 1992 will full knowledge of what was required to establish and continue entitlement to the dependency allowance. VA required that certain elements of proof were necessary to establish entitlement to additional compensation for a spouse and dependent children, which the veteran provided in each instance. The veteran's previous contacts with VA are evidence of the normal course of events in such cases. That is, the evidence is sought or provided by the veteran in the first instance and VA processes the claim in a timely manner. However regarding the situation as it pertains to J. and her daughter the claim is based on administrative error. To resolve situations such as this one in which administrative error on the part of VA is asserted, the case law has defined a presumption of regularity to the effect that "[t]he presumption of regularity 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". Clear evidence to the contrary is required to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App. 307 (1992), (quoting United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926)). While the Ashley case dealt with regularity in procedures at the Board, in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the United States Court of Appeals for Veterans Claims (Court) applied the presumption of regularity to procedures at the RO level, such as in the instant case. The Court specifically held that a statement of the appellant, standing alone, is not sufficient to rebut the presumption of regularity in RO operations. The presumption of regularity thus dictates that in the normal course of business, the veteran would have provided notice of a change in dependent status and VA would have asked for the documentation to establish entitlement and then inform the veteran of the effective date for additional compensation for dependent children or a spouse when established. In this case the veteran's initial compensation entitlement was established in 1971. There is nothing contained in the record to indicate that anything unusual happened as to the location of the record which would have prevented the RO from following its usual procedures. Although the veteran's past actions offer insight, the record appears to confirm that regarding J. the usual attention to procedures were not followed. Correspondence shows frequent communication between the veteran and VA through 1991 regarding benefit matters relating to dependency. The veteran had provided documents in support of a dependent spouse at the time of marriages prior to 1992. As explained above, the veteran's statements do not constitute clear evidence to the contrary sufficient to rebut the presumption of regularity. However, there is another means for the veteran to prevail that does not rely on the presumption of regularity but rather constructive receipt. As a result of the development completed after the Board remand, the RO received evidence pertinent to the principle of constructive receipt. The pertinent documents coincided with VA hospitalization in October 1992 for which the summary had been of record in 1993. The records were dated after July 21, 1992, the earliest date for the application of the constructive receipt rule. See Damrel v. Brown, 6 Vet. App. 242, 246 (1994) discussing the effective date for application of the constructive receipt rule established in Bell v, Derwinski, 2 Vet. App. 611, 613 (1992). The fact that information prior to that date did not address the veteran's current marital status is not material to the determination. The VA General Counsel has opined that when a claim was finally denied prior to July 21, 1992, the effective date of the Bell decision, which established the constructive receipt rule, and benefits are subsequently awarded in a reopened claim based on evidence which was previously in VA's possession but was not actually or constructively in the record before the AOJ at the time of the prior decision, the effective date of the award would generally be the date on which the reopened claim was filed. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q)(1)(ii) and (r). Further, that it should be borne in mind that such records may themselves constitute informal claims, which can have implications for the effective dates of resulting awards under 38 C.F.R. § 3.157. VAOPGCPREC 12-95. The decision presently before the Board may be resolved in accord with this opinion. From the record constructively before the RO the Board is able to find that notice of the veteran's marriage to J. was submitted in October 1992 and the information in the recently received VA records established an informal claim from the date of hospital admission. Since this was within a year of his marriage to J. on March 27, 1992, additional compensation allowance for J. and her child should be established from that date in accordance with the applicable law and regulations governing monetary payments of this kind. ORDER An effective date for additional compensation based on recognition of a dependent spouse and child retroactive to March 27, 1992 is granted, subject to the regulations governing the payment of monetary awards. REMAND This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. The Board remand referred to the RO a pending claim of entitlement to service connection for PTSD. The RO in January 1999 granted service connection for PTSD and assigned a 50 percent rating from March 11, 1998. After being notified of the determination the veteran disagreed with the effective date. The RO in August 1999 granted a January 1983 effective date for service connection of PTSD and a 10 percent rating. The 50 percent rating was continued from February 19, 1998. The veteran was notified of the determination in August 1999 and he clearly disagreed with the initial rating of 10 percent prior to February 19, 1998 in January, 2000 correspondence to the Board. His earlier correspondence to the RO in August 1999 could be reasonably interpreted as a notice of disagreement with the initial rating of less than 50 percent. In any event a timely notice of disagreement has been filed. His correspondence to the RO in December 1999 could be reasonably interpreted as a request for a hearing on this issue. Therefore the Board finds the veteran has filed a timely notice of disagreement. The failure to issue a statement of the case in such circumstances is a procedural defect requiring a remand. Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995). However, before the issue is returned to the Board it must be perfected by filing a timely substantive appeal. Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); 38 C.F.R. §§ 20.200, 20.201, 20.300 (1999). In view of the applicable legal precedent mentioned above, as applied to the facts of this appeal, the case is again remanded for the following action: 1. The RO should issue a statement of the case covering the issue of entitlement to an initial rating for PTSD greater than 10 percent prior to February 19, 1998. He should be advised of the requirements necessary to perfect a timely appeal if he wishes appellate review. 2. The RO should have the veteran clarify his intention regarding a personal hearing on the remanded issue. 3. After undertaking any development deemed essential in addition to that specified above, the RO should complete, as warranted, any adjudication determination regarding the issue under consideration. If the benefit requested on appeal is not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case where indicated. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. RONALD R. BOSCH Member, Board of Veterans' Appeals