Citation Nr: 18160572
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 17-05 628A
DATE:	December 27, 2018
ORDER
1.  An effective date prior to January 7, 2013, for additional compensation benefits for a dependent child (C.S.) is denied.
2.  An effective date prior to January 14, 2013, for additional compensation benefits for a dependent child (B.S.) is denied.
INTRODUCTION
The Veteran served on active duty from June 1982 to July 1982 and from June 1986 to September 2006.
These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 decision by a Department of Veterans Affairs (VA) Regional Office RO).
FINDINGS OF FACT
1.  The Veteran’s child (C.S.) turned 18 years old on August [redacted], 2011; the Veteran did not file a claim for payment of additional compensation benefits for a dependent on the basis that he was pursuing a course of instruction at a VA-approved institution until February 2014, more than one year after the child’s 18th birthday.
2.  The Veteran’s child (B.S.) turned 18 years old on November [redacted], 2009; the Veteran did not file a claim for payment of additional compensation benefits for a dependent on the basis that he was pursuing a course of instruction at a VA-approved institution until February 2014, more than one year after the child’s 18th birthday.
CONCLUSIONS OF LAW
1.  The criteria for an effective date prior to January 7, 2013, for additional compensation benefits for a dependent child (C.S.) have not been met.  38 U.S.C. §§ 1115, 5110; 38 C.F.R. §§ 3.4, 3.31, 3.57, 3.109, 3.667.
2.  The criteria for an effective date prior to January 14, 2013, for additional compensation benefits for a dependent child (B.S.) have not been met.  38 U.S.C. §§ 1115, 5110; 38 C.F.R. §§ 3.4, 3.31, 3.57, 3.109, 3.667.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The evidence of record establishes that C.S. is the Veteran’s son and his birthday is August [redacted], 1993.  The evidence of record also establishes that B.S. is the Veteran’s daughter and that she was born on November [redacted], 1991.  As such, C.S. 18th birthday was August [redacted], 2011, and B.S. was November [redacted], 2009.
In a January 2007 rating decision, service connection was granted for a variety of the Veteran’s disabilities.  Based on the ratings assigned to these disabilities, the Veteran’s overall rating was 50 percent, effective October 1, 2006.
In a January 23, 2007 letter, the Veteran was provided notice of the rating decision and notice of his appellate rights.  The letter also contained a chart regarding the monthly disability compensation payments to the Veteran, including the amount of those payments, prospective changes in the amount of the payments, why those changes were occurring, and when the changes would take effect.  This chart shows that the monthly payments to the Veteran were $937.00 effective February 1, 2007.  Subsequent entries in the chart show that, effective November 9, 2009, the Veteran’s monthly payment would be reduced from $937.00 to $902.00, and the reason given for the change was that his daughter, B.S., turned 18 years old.  Similarly, on August [redacted], 2011, the monthly payment would be reduced to $867.00 because his son, C.S., turned 18 years old.
Immediately below the above-discussed chart regarding the Veteran’s monthly payments, the Veteran was notified that he was being paid as a Veteran with 5 dependents (a spouse and 4 children).  Further, the Veteran was directed to “[l]et us know right away if there is any change in the status of your dependents.” (italics in the original).  This notice letter was sent to the mailing address of record, which has remained the mailing address of record throughout this appeal.
The Veteran asserts that he never received the January 23, 2007 notification.
In this regard, the presumption of regularity states that VA and other government officials perform their duties correctly, fairly, in good faith, and in accordance with law and governing regulations.  Marsh v. Nicholson, 19 Vet. App. 381 (2005).  For the purposes of this appeal, the presumption of regularity extends the officials at the Regional Office who were responsible for issuing the January 23, 2007 letter the Veteran.  See Woods v. Gober, 14 Vet. App. 214, 220-21 (2000); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (applying the presumption of regularity to official duties of the RO).
Significantly, the Veteran may rebut the above presumption by submitting clear evidence to the effect that VA’s regular mailing practices were not followed in his case.  In this regard, 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).  An “assertion of nonreceipt, standing alone, does not rebut the presumption of regularity in VA’s mailing process.”  Jones v. West, 12 Vet. App. 98, 102 (1998).
Conversely, 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 curiam order); 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); see also Baxter v. Principi, 17 Vet. App. 407, 410 (2004).
Beyond the Veteran’s assertions that he did not receive the January 23, 2007 notice, the Veteran has provided no clear evidence that VA’s regular mailing practices were not followed.  Further, there is no documentation or indication that this letter was returned as undeliverable.  Moreover, it was sent to the Veteran’s address of record that VA has used for all other correspondence, none of which has been returned as undeliverable.  Consequently, the Board finds that the presumption of regularity has not been rebutted.  Jones, supra; Crain, supra.  As such, the Veteran is presumed to have received the January 23, 2007 letter and the notice contained therein.
In accordance with the chart contained in the January 23, 2007 letter, the Veteran’s monthly disability compensable payments were reduced upon his daughter’s and son’s respective 18th birthdays.
A child is defined as an unmarried person who is (i) under the age of 18 years; (ii) before the age of 18 years became permanently incapable of self-support; or (iii) after attaining the age of 18 years and until completion of education or training (but not after attaining the age of 23 years) is pursuing a course of instruction at an approved educational institution.  38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.57(a).  The allowance is generally discontinued when a dependent child turns 18, or when the child turns 23 if he or she is enrolled in school.  38 C.F.R. §§ 3.503, 3.667.
Additional pension or compensation may be paid from a child’s 18th birthday based upon school attendance, if the child was at that time pursuing a course of instruction at an approved educational institution, and a claim for such benefits is filed within one year from the child’s 18th birthday.  Pension or compensation based upon a course of instruction at an approved educational institution which was begun after a child’s 18th birthday may be paid from the commencement of the course, if a claim is filed within one year from that date.  38 C.F.R. § 3.667(a)(2).
VA did not receive a claim within a year of either B.S. or C.S. 18th birthday for additional compensation based school attendance.  The evidence of record demonstrates that the Veteran submitted a VA Form 21-674, Request for Approval of School Attendance, that was date-stamped as received by VA on February 13, 2014.  Based on this claim, and the supporting evidence of both B.S. and C.S. school attendance, VA granted additional compensation for dependent children based on school attendance, effective January 7, 2013 (for C.S.) and January 14, 2013 (for B.S.) in May 2015.  
The Veteran perfected an appeal of this decision, seeking earlier effective dates.  Specifically, the Veteran asserts that he is entitled to the additional compensation for B.S. effective December 1, 2009, and for C.S. effective September 1, 2011.  
In support of his claims, the Veteran initially stated in a February 2014 letter, the following: 
Unfortunately, these [VA Form 21-674s] were not submitted at the appropriate time since I was unaware of the requirement to show full[-]time student documentation for the VA since I re-enrolled them in the DEERS System for continuation of TRICARE Coverage.  I assumed there was linkage of the DEERS System with the VA System.
Having said that, I respectfully request that my dependents be reinstated in the VA system as of 2009 to present.
In September 2014, the Veteran submitted what he purports are status updates he submitted to VA regarding B.S. and C.S. in order to re-enroll them in DEERS (the Defense Enrollment Eligibility Reporting System) in November 2009 and August 2011, respectively.  While these letters are dated November 12, 2009 and August 8, 2011, and are signed by the Veteran, neither is date-stamped as received by VA.  The cover letter accompanying these letters is date-stamped as received on September 30, 2014.  These letters do not appear elsewhere in the record as received by VA in or near-in-time to the dates claimed by the Veteran.
During a May 2015 telephone conversation, the Veteran is reported as saying he “submitted all [of] the necessary information at the appropriate times to add the children from back to the date they were taken off.”  Further, the Veteran reportedly stated that he “submitted multiple documents to [the] Houston[, Texas] RO and on E[-]Benefits]” and that he “physically brought things into the Waco[, Texas] RO.
The Veteran then submitted a May 2015 letter detailing his efforts to notify VA regarding his children’s ages.  The Veteran asserted that the Houston RO failed to reply to his submissions after B.S. and C.S. were removed from his benefits.  He stated he then submitted a package of all supporting documents to the Houston RO via the Texas Veterans Commission in 2013.  The Veteran stated that he did not receive a response to this package for 12 months, at which time he submitted 2 packages of information through E-Benefits in 2014.  He further visited the Waco RO three times in the previous 2 years, speaking with several officials there who “assured” him that all of the documentation he needed was contained in the package.
In his February 2017 substantive appeal, the Veteran reiterated his previous arguments in support of his claims.  He also stated that he sent the packages of documentation to the Houston RO “during the time when the center was undermanned and overwhelmed with mounting veterans’ claims.”  Moreover, the Veteran stated that officials at the Waco RO informed him that the Houston RO was so far behind (in excess of 100,000 claims), that submission are “sometimes” “overlooked or misplaced and not submitted.”  The Veteran asserted that his submissions were “caught in this onslaught of claims,” but that it should not be the reason why his package was never “properly processed when first submitted.”
In essence, the Veteran’s assertions in support of his claim are two-fold: (1) that he timely submitted the necessary claims to continue receiving additional benefits for his dependent children (B.S. and C.S.) based on school attendance; and (2) that the evidence of record at present is sufficient to grant the additional compensation retroactively.
With respect to the first assertion, the evidence of record does not demonstrate that the Veteran submitted claims for additional compensation for dependent children enrolled in school within one year of either B.S. or C.S. 18th birthday.  The Veteran appears to claim that he submitted packages with the necessary documents to the Houston RO, but that he never received a response.  As discussed above, it is presumed that RO officials performed their duties correctly, fairly, in good faith, and in accordance with law and governing regulations.  The only evidence that the officials at the Houston RO failed to perform their duties are the Veteran’s assertions.  This is simply not enough to overcome the presumption of regularity.  Jones, 12 Vet. App. at 102.
The Veteran submitted letters dated in November 2009 and August 2011, that were purportedly sent to the Houston RO.  Neither of these letters bears a date-stamp that it was received by the Houston RO or other VA entity.  Without additional evidence demonstrating that these letters were indeed mailed to VA, this evidence amounts to additional assertions by the Veteran that do not overcome the presumption of regularity.  Id.
The evidence of record is otherwise devoid of documentation demonstrating that the Veteran submitted claims within one year of either B.S. or C.S. 18th birthday.
With respect to the Veteran’s second assertion, the Board acknowledges that the Veteran has amply demonstrated that he was eligible for additional disability compensation based on both B.S. and C.S. attendance at school prior to January 14, 2013 and January 7, 2013, respectively.  However, being eligible is separate and distinct from being entitled to payment of benefits.  
As cited above, additional compensation may be paid from a child’s 18th birthday based upon school attendance, if the child was at that time pursuing a course of instruction at an approved educational institution, and a claim for such benefits is filed within one year from the child’s 18th birthday.  38 C.F.R. § 3.667(a)(2).  As determined herein, the Veteran did not file a claim within one year from B.S. or C.S. 18th birthday.  Consequently, the Veteran was not entitled to payment of the additional compensation even if he subsequently has demonstrated his eligibility for it.
If VA receives a claim for additional benefits based on school attendance one year or more after a child turns 18 (but before age 23), as is the case here, the additional dependency benefits may be paid effective as of the first day of the month following the month school attendance began, as long as VA receives the claim within one year of the date school attendance began.  See 38 C.F.R. § 3.667(a).
The evidence does not establish that the Veteran submitted a claim for additional benefits after B.S. or C.S. 18th birthday until February 13, 2014.  The evidence demonstrates that C.S. enrolled for a Spring 2013 semester on January 7, 2013, and that B.S. enrolled for the Spring 2013 semester on January 14, 2013.  As such, looking back one year from the date of claim, these are the earliest dates permitted by the regulations.
VA, including the Board, is bound by the applicable law and regulations as written. 38 U.S.C. § 7104(c).  The regulations regarding the effective date of additional compensation benefits derive their authority from the United States Code.  38 U.S.C. § 5110.  It is the function of Congress to make law, and the function of VA, including the Board, to faithfully implement those laws.  The Board is without authority to grant benefits simply on the basis that it might be perceived as equitable.  38 U.S.C. §§ 503, 7104.  The Board observes that no equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress.  Smith v. Derwinski, 2 Vet. App. 429 (1992).
 
T. REYNOLDS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Sean G. Pflugner, Counsel 

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