McColley v. West

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 99-460

JAMES A. MCCOLLEY , APPELLANT ,

V.

TOGO D. WEST ,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided July 21, 2000 )

R. Lawrence Roberson, of Tulsa, Oklahoma, was on the brief for the appellant.

Leigh A. Bradley, General Counsel; Ron Garvin, Assistant General Counsel; Carolyn F.

Washington, Deputy Assistant General Counsel; and Jennifer Whittington, all of Washington, D.C.,

were on the pleadings for the appellee.

Before NEBEKER, Chief Judge, and KRAMER and FARLEY, Judges.

NEBEKER, Chief Judge: The veteran, James A. McColley, appeals a November 19, 1998,

decision of the Board of Veterans' Appeals (BVA or Board) which denied entitlement to an earlier

effective date for a grant of additional disability compensation in the form of a dependency

allowance for his children. The veteran has filed a brief and the Secretary has filed a motion for

summary affirmance. For the reasons set forth below, the Court will grant the Secretary's motion

and affirm the Board's decision.

I. FACTS

The veteran served on active duty from August 1968 to March 1971, including service in

Vietnam. Record (R.) at 8. In November 1992, he filed an initial application for service-connected

disability benefits, and indicated that he had five children. R. at 17-20. Three of the children listed

shared the appellant's last name and two, indicated as stepchildren or adopted children, had the last

name of the appellant's wife's former spouse. R. at 18. Copies of the appellant's marriage certificate

and license were received by VA in February 1993. R. at 22-24. A July 1993, VA rating decision

granted service connection for post-traumatic stress disorder (PTSD) and assigned a 50% evaluation,

effective December 1992. R. at 26-28, 30. In August 1993, VA notified the appellant of this

decision, informed him that he may be entitled to additional compensation for his children, and asked

him to furnish original or certified copies of the birth certificates of his children. R. at 30. Based

on an appeal, in August 1994, his PTSD rating was increased to 100%. R. at 64-67.

In September 1996, the appellant submitted a "Declaration of Status of Dependents" to VA,

and included copies of the birth certificates of three of his children. R. at 72-77. Additional

compensation was awarded effective October 1996. R. at 82. The appellant was notified that his

dependents could not be added prior to that date because the birth certificate information requested

in August 1993 had not been furnished until 1996. Id. This determination was appealed and at an

April 1997 hearing, the appellant testified that shortly after the 1993 request he had sent the

requested birth certificates to VA by mail. R. at 102, 105. In the decision here on appeal, the BVA

held that the record did not support the appellant's contention that he had submitted the required

evidence of his children's birth within one year of VA's August 1993 request, and accordingly, his

claim for entitlement to an earlier effective date was denied. R. at 1-4.

In his brief to the Court, the appellant, through counsel, argues that his hearing testimony,

under oath, that he sent the birth certificates within one year of the August 1993 letter, has not been

contradicted, and should be accepted as fact. Appellant's Brief (Br.) at 5. Citing 38 C.F.R. §§ 3.204

and 3.209 (1999), he further asserts that evidence sufficient for establishing age or relationship of

a dependent child is not limited to birth certificates, and that his benefits application of 1992,

identifying his children, and signed under warning of penalty for willful submission of any false

statement, should suffice to establish that VA had evidence of his dependents at the time of, and

therefore within one year of, submission of his original claim. Id. at 5-7.

The Secretary responds that the BVA made a plausible finding of fact regarding the assigned

effective date and should be affirmed. Secretary's Br. at 3-5. He contends that he is entitled to the

"presumption of regularity," and that the appellant's testimony that he mailed the birth certificates

was insufficient to overcome the presumption because no birth certificates are located in the claims

file. Id. at 6. The Secretary argues that the appellant failed to submit the evidence required by

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38 C.F.R. § 3.209, and that a father's sworn statement is insufficient because the regulation requires

public documents or private but independent records. Id. at 6-7. Further, he argues that section

3.209(g) "does not contemplate that the claim itself " can serve as the evidence necessary to establish

dependency. Id.

II. ANALYSIS

Generally, a Board determination of the proper effective date is a finding of fact, which the

Court reviews under the "clearly erroneous" standard of review. See Hanson v. Brown, 9 Vet.App.

29, 32 (1996); Scott v. Brown, 7 Vet.App. 184, 188 (1994). However, here we are presented with

questions of law based on uncontested facts, and our review is de novo. See 38 U.S.C. § 7261(a)(1);

Butts v. Brown, 5 Vet.App. 532, 539 (1993) (en banc); see also Hensley v. West, 212 F.3d 1255 (Fed.

Cir. 2000) (discussing this Court's de novo review authority).

If evidence requested by VA in connection with a claim is not furnished within one year, the

claim will be considered abandoned and further action will be considered a new claim upon which

payments shall commence no earlier than the date of such new claim. 38 C.F.R. § 3.158(a) (1999);

see also Wamhoff v. Brown, 8 Vet.App. 517, 520 (1996) (where evidence supporting claim not

furnished within one year of request, claim considered abandoned under section 3.158(a)); Morris

v. Derwinski, 1 Vet.App. 260, 265 (1991) (same; claimants deemed to have knowledge of

requirements of section 3.158(a)) (citing Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380,

384-85 (1947) (charging those dealing with the Government with knowledge of federal statutes and

regulations)). Section 5110(f), title 38, U.S. Code, provides that "[a]n award of additional

compensation on account of dependents . . . shall be payable from the effective date of [a] rating; but

only if proof of dependents is received within one year from the date of notification of such rating

action."

The effective date for payment due to a claimant based on dependency shall be the latest of:

(1) the "date of claim"; (2) the date dependency arises; (3) the effective date of the qualifying

disability, so long as evidence of dependency is received by VA within one year of notification of

such rating; or (4) the date of commencement of the veteran's award. 38 C.F.R. § 3.401(b) (1999).

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The "date of claim" includes the "date notice is received of the dependent's existence, if evidence is

received within 1 year of [VA's] request." Id.

The regulations provide that VA will accept the written statement of a claimant as proof of

the birth of a child, for purposes of determining entitlement to benefits, as long as the statement

contains the month, year, and place of the birth, the full name and relationship of the child to the

claimant, residency information if the child does not live with the claimant, and the child's social

security number. 38 C.F.R. § 3.204(a)(1). Other evidence is required when the claimant does not

reside within a state, when the claimant's statement on its face raises questions of validity or conflicts

with other evidence of record, or when there is a reasonable indication of fraud or misrepresentation

of the relationship in question. See 38 C.F.R. § 3.204(a)(2) (requiring evidence of the types

indicated in 38 C.F.R. §§ 3.205 through 3.211 (1999)). Under section 3.209, age or relationship may

be established by several methods, including: (a) a copy of a public record of birth; (b) a copy of a

church baptismal record; (c) a service department official report if the birth occurred while the

veteran was in service; (d) an affidavit or certified statement of the physician or midwife in

attendance at the birth; (e) a certified copy of a Bible or other family record; (f) affidavits or certified

statements of two or more people, preferably disinterested, attesting to their personal knowledge of

certain biographical information of the person in question; or (g) "[o]ther evidence which is adequate

to establish the facts in issue, including census records, original baptismal records, hospital records,

insurance policies, [or] school, employment, immigration, or naturalization records."

Here, based on the record before us, the Court holds that the Board did not err in the denial

of an earlier effective date. The Secretary has authority to prescribe the nature and extent of the

proof required in order to establish a right to VA benefits. See 38 U.S.C. § 501. The VA application

form for benefits, which the appellant submitted in November 1992, states that both a marriage

certificate evidencing a claimant's current marriage, and a "certified copy of the public or church

record of birth," are required. See R. at 18; see also 38 U.S.C. § 5101(a) (claim must be filed in form

prescribed by Secretary); Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), cert. denied, 525 U.S.

834 (1998). The record includes copies of the appellant's marriage certificate, received by VA in

1993, but does not evidence receipt of birth certificates at that time. See R. at 22-24. The VA's

August 1993 letter reiterated the need for birth certificates; however, the evidence does not show that

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the appellant complied with this requirement, and no birth certificates were received until 1996. See

R. at 72-75; see also 38 U.S.C. § 5103 (Secretary shall notify claimant of evidence necessary to

complete application for benefits). The appellant's sworn testimony that he mailed the birth

certificates within one year of VA's request, assumed truthful for our purposes, does not serve to

secure an earlier effective date. An award of dependency benefits is not contingent on the "mailing"

of the required evidence, but rather its "receipt" by VA. See 38 C.F.R. §§ 3.401(b) (effective date

for award of dependency compensation contingent on date evidence "received"), 3.158(a) (claim

considered abandoned if evidence not "furnished" within one year of VA's request); cf. 38 C.F.R.

§ 7104(e) (19991) (Board shall "mail" or "send" copy of its decision to claimant or representative);

see also R. at 30 (VA's August 1993 letter directing appellant to "furnish" birth certificates). This

Court has made clear that to "furnish" constitutes something "more than mere mailing," and requires

actual receipt. See Montalvo v. Brown, 7 Vet.App. 312, 314 (1995). In the absence of any evidence

that the appellant's children's birth certificates were received by VA prior to 1996, there is no

contested fact supporting a contrary finding.

Further, while the regulations prescribe acceptance of a claimant's written statement as

evidence of the birth of a child, this form of proof is only admissible when (1) the statement contains

certain information and (2) other factors, casting doubt as to the validity of the information, are not

present. See 38 C.F.R. § 3.204(a)(1), (a)(2). The appellant's original application for benefits does

not satisfy the "written statement" required by section 3.204(a)(1) because it does not include the

place of the children's birth. See 38 C.F.R. § 3.204(a)(1). Additionally, because the application lists

two children who have a different last name from that of the appellant, and whom he identified as

step children or adopted children, this situation is one such as those contemplated by section

3.204(a)(2), where the written statement of the claimant is not adequate to prove dependency, and

alternate proof is therefore required. See 38 C.F.R. § 3.204(a)(2) (requiring alternate proof when

statement "on its face raises a question of its validity").

Because the appellant did not satisfy the "written statement" requirement of section 3.204 in

showing dependency, he would need to have satisfied one of the alternative methods of proving his

relationship with the dependents for the Court to find error in the Board's determination. He argues

that his signed application for benefits, identifying the children, meets the requirement of "[o]ther

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evidence which is adequate to establish the facts in issue." See 38 C.F.R. § 3.209(g). The Court

disagrees.

As noted above, while section 3.204(a)(1) permits a claimant's written statement to serve as

evidence of dependency, the statement must include certain information. If there is doubt as to the

validity of that statement, evidence as outlined in section 3.209 may serve as proof of dependency.

The evidence listed in section 3.209 includes various types of public and private records, certified

statements and affidavits, as well as "other adequate evidence." While the "other adequate evidence"

catchall of section 3.209(g) leaves room for discretion by VA, the evidence suggested in section

3.209(g) is limited to either public information, or private, but independent, information. See 38

C.F.R. § 3.209(g) ("other evidence" includes "census records, original baptismal records, hospital

records, insurance policies, [or] school, employment, immigration, or naturalization records"). Thus,

something more than "the written statement of the claimant," see section 3.204(a), is needed to fulfil

section 3.209(g). Further, were VA to accept a statement of the claimant which fails to meet the

requirements of section 3.204(a)(1) as proof of dependency under section 3.209(g), the application

of section 3.204(a)(1) would become moot. See McGuire v. West, 11 Vet.App. 274, 279 (1998)

("Regulations should be construed so as to harmonize them with the authorizing law"); Bone

v. Brown, 9 Vet.App. 446, 449 (1996) (deference is given to Secretary's interpretation of statute).

Accordingly, we hold that when read in the context of section 3.209 in its entirety, it is manifest that

the "other evidence" satisfying section 3.209(g) must be of the type that has special indications of

trustworthiness so as to render it "adequate to establish the facts in issue." While the evidence

specifically listed in section 3.209(g) is not exhaustive of the "other adequate evidence," the benefits

claim form, standing alone, may not serve to satisfy this regulation. Therefore, the BVA did not err

in denying entitlement to an effective date for dependency benefits earlier that October 1996.

III. CONCLUSION

After consideration of the veteran's brief, the Secretary's motion, and a review of the record,

the Court holds that the appellant has not demonstrated that the Board committed either legal or

factual error which would warrant reversal or remand. The Secretary's motion is therefore granted,

and the November 19, 1998, decision of the Board is AFFIRMED.

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