Citation Nr: 1120295 Decision Date: 05/25/11 Archive Date: 06/06/11 DOCKET NO. 09-18 605 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES Entitlement to additional allowance for school attendance of a dependent child over the age of 18, from August 2003 until December 2007. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Bosely, Associate Counsel INTRODUCTION The Veteran had active service from September 1964 to August 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran testified before the undersigned Veterans Law Judge in a hearing at the RO in March 2011. A transcript of the hearing has been associated with the claims file. The issue of entitlement to additional allowance for school attendance of dependent children over the age of 18 other than the Veteran's daughter KDS, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The record shows that the Veteran's daughter KDS was born in February 1985, and she reached the age of 18 in February 2003. 2. The RO stopped paying additional compensation for KDS as a dependent child effective from June 2003, when she graduated from high school, which was after her 18th birthday. 3. KDS was a full-time college student from August 2003 until December 2007, during which time she was not over 23 years of age; she was married in May 2007. 4. The RO notified the Veteran in March 2003 that he needed to submit further information after June 2003 to establish continuing dependency, but the RO did not receive a formal or informal Request for Approval of School Attendance prior to June 2008. CONCLUSION OF LAW The criteria are not met for payment of dependency benefits for KDS, a child over the age of 18, based upon school attendance for the period from August 2003 until December 2007. 38 U.S.C.A. §§ 101, 1114, 1115, 1134 (West 2002); 38 C.F.R. §§ 3.57, 3.115, 3.667 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Here, the case is one in which the law is dispositive of the issue. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Under such circumstances, the duties to notify and assist are not applicable. Mason v. Principi, 16 Vet. App. 129 (2002). Further, VA has no duty to assist an appellant in obtaining evidence where, as here, there is no reasonable possibility that any further assistance would aid her in substantiating her claim. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001). Nonetheless, the Board notes that the RO informed the Veteran in a May 2009 statement of the case (SOC) of the criteria for receiving an additional allowance for a dependent child. Furthermore, the Veteran has been provided the opportunity to submit evidence and argument in support of his claim and to respond to VA notices, including at a March 2011 hearing before the Board. The Board finds that there is sufficient evidence to make a determination in this case, and the Veteran is not prejudiced by a decision at this time. See Bernard v. Brown, 4 Vet. App. 384, 392-394 (1993). II. Analysis In the present case, the Veteran contends, essentially, that he should be awarded a retroactive award of compensation for a dependent child, his daughter KDS, after her eighteenth birthday and during the time when she was in college. Any veteran entitled to compensation under the provisions of 38 U.S.C.A. § 1114, and whose disability is rated not less than 30 percent, shall be entitled to additional compensation for a dependent child who has attained the age of eighteen years and who is pursuing a course of instruction at an approved educational institution. 38 U.S.C.A. § 1115. A child of a veteran is legitimate child, a child legally adopted before the age of 18 years, and a stepchild who acquired that status before the age of 18 years and who was a member of the veteran's household at the time of the veteran's death, and who (i) is under the age of 18 years; or, (ii) who before reaching the age of 18 years becomes permanently incapable of self- support; or, (iii) who, after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an educational institution approved by VA. 38 C.F.R. § 3.57. Compensation may be paid from a child's 18th birthday based upon school attendance if the child was at that time pursing a course of instruction at an approved educational institution and a claim for such benefits is filed within 1 year from the child's 18th birthday. Compensation based upon a course of instruction at an approved educational institution that was begun after a child's 18th birthday may be paid from the commencement of the course if a claim is filed within 1 year from that date. 38 C.F.R. § 3.667(a)-(b). Any communication or action indicating an intention to apply for one or more benefits under the laws administered by VA from a claimant, his or her duly appointed representative, a Member of Congress, or some person acting as next friend of the claimant who is not sui juris, may be considered an informal claim. Such an 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 one 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. 38 C.F.R. § 3.155. In the present case, by way of history, the claims file shows that the Veteran was awarded a disability rating of at least 30 percent beginning in June 1983. The record also shows that the Veteran's daughter, KDS, was born on February [redacted], 1985. Thus, she turned eighteen on February [redacted], 2003. The Board finds upon review that the Veteran is not entitled to retroactive compensation for a dependent child, for the following reasons. In June 2008, the Veteran filed a VA Form 21-674, Request for Approval of School Attendance, for KDS. He indicated that she had started college in August 2003 and had graduated in December 2007. Also, she had been married in May 2007, but had remained his dependent until December 2007. In an August 2008 testimonial statement, he argued that he should receive back pay since July 2003, as KDS had been a school age child going to college until December 2007. The Board reiterates that the provisions of 38 C.F.R. § 3.667 do not provide for retroactive benefits unless a claim is filed within one year of the commencement of the course. Here, the Veteran's daughter, KDS, began college in August 2003, but the Veteran did not file his claim until June 2008, which was almost five years later. Thus, he is not entitled to an award of additional compensation, as a matter of law, for any period earlier than June 2007, which was one year from the date of his June 2008 claim. See 38 C.F.R. § 3.667. In this regard, a university transcript of record shows that KDS attended classes in the Spring 2007 semester, Summer 2007 term, and Fall 2007 semester. The Veteran specified in his claim, however, that KDS was married in May 2007, which was greater than one year prior to the filing of his June 2008 claim. Because a dependent must be an unmarried person, KDS does not satisfy the criteria to be considered a child as of the date she was married. See 38 C.F.R. § 3.57(a)(1). Therefore, additional compensation may not be awarded, even though KDS was still attending college courses within one year of the June 2008 claim. 38 C.F.R. § 3.667. At his March 2011 Board hearing, the Veteran's service representative raised several related arguments to support the claim. He argued that the Veteran should have been given notice between March 2003 and June 2007 that his benefits were going to be reduced. He also argued that the Veteran did not receive proper notice that he needed to complete further documents in order for his additional dependents benefits to continue while KDS attended college. Additionally, the service representative argued that the Veteran received no requests for information from the RO between 2003 and 2007, and he feels that the RO should have requested updated dependency status during that period. The Board finds that these arguments have no merit, for the following reasons. First, the record shows that the Veteran, in February 2003, filed a VA Form 21-674C, Request For Approval of School Attendance, for KDS. He detailed that she was in high school with an expected date of graduation in May 2003. In response, to the Veteran's February 2003 submission, the RO in March 2003 sent him a notice letter informing him that his disability compensation award had been amended with additional benefits included for KDS. The letter further informed the Veteran that payments for KDS were based on her school attendance, and that the payments would continue until June 1, 2003. Additionally, the letter informed the Veteran that he needed to complete an enclosed VA Form 21-674b for KDS after her schooling began or the benefits would be reduced or stopped. The Board points out that the Veteran was notified that the additional compensation for KDS based on her high school attendance would end June 1, 1003. There was no further reduction in benefits thereafter. Because no further reduction actually took place, the Board finds no merit in the service representative's argument that the Veteran should have been given notice that his benefits were going to be reduced between March 2003 and June 2007. With regard to his second argument, that the Veteran did not receive proper notice of the requirements for obtaining additional benefits while KDS was in college, the Board points out that the Veteran previously received this information in connection with an older daughter. In particular, the claims file shows that the Veteran submitted a Status of Dependents Questionnaire in February 1999. In the Questionnaire, he wrote that he had a daughter, "S," who lived in his household and was over eighteen, but who was planning on attending college that fall. He went on, "If I am not eligible for benefits for her, it is understandable." In response to his February 1999 inquiry, the RO sent the Veteran a letter later in February 1999 informing him that he was "eligible for your dependent daughter through the age of 23 as long as she is attending school." The RO's letter then informed the Veteran that he needed to complete an additional form once "S" began school. (The Veteran did not respond to the RO's letter.) The Board finds that the RO's February 1999 letter clearly explained to the Veteran the eligibility criteria and requirements for requesting additional compensation for a dependent child over the age of eighteen who was attending college. Thus, although it pertained to a different daughter, it is reasonable to expect that he was aware of what was needed to obtain the same benefit for KDS. See, e.g., Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (explaining that one of the factors for determining prejudice to a veteran with regard to notice deficiency concerns whether it is reasonable to expect that the claimant understands what was needed to prevail). Moreover, the RO directly provided this information in the March 2003 letter, cited above, which specifically concerned KDS. The letter informed the Veteran that the additional benefits for KDS would end June 1, 2003, when she graduated high school. Moreover, the letter, as indicated, informed that Veteran that he needed to submit an additional form to continue the benefits for KDs. Finally, the letter advised the Veteran to "Please read the enclosed VA Form 21-8764," which "contains important information about rights to receive this benefit." A VA Form 21-8764 was enclosed with the RO's March 2003 letter. The Board takes notice that a VA Form 21-8764 informs a veteran that "Veterans having a 30% or more service-connected evaluation may be entitled to additional compensation for a spouse, dependent parents, unmarried children under 18 (or under 23 if attending an approved school) or a child who became permanently incapable of self-support because of mental or physical defect prior to age 18." (emphasis added). Thus, the Veteran received adequate notice that he needed to inform the RO that KDS was attending college. Also significant, the March 2003 notice letter included all appropriate forms for him to do so. The claims file shows that the Veteran did not respond, as indicated, until June 2008. Thus, there is no merit to the argument that the Veteran did not receive proper notice of the information necessary to request additional compensation for KDS while she attended college. With regard to the final argument, that the RO should have contacted the Veteran to requested updated dependents information, there is nothing in the claims file that may reasonably be construed as alerting the RO that they should have contacted the Veteran to request updated dependency information after March 2003. Furthermore, the Veteran has not identified any legal authority, and the Board finds no other basis, to conclude that the RO was obligated to contact him between March 2003 and June 2007 to request updated dependency information. In other words, the record contains no informal claim for additional dependents benefits after March 2003 or until June 2008. Therefore, there is no fault on the part of the RO in not forwarding the Veteran the requisite claims forms after previously doing so in March 2003. See 38 C.F.R. § 3.155; see also Kessel v. West, 13 Vet. App. 9 (1999). Importantly, although VA has a duty to assist, that duty is not a one-way street and does not provide for the Veteran to have remained in a passive role. See Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992). For the foregoing reasons, the Veteran's claim is denied. The law is dispositive of the outcome of this case. As a matter of law, there is no entitlement to either a current or retroactive award of dependency allowance for the Veteran's claimed dependent daughter, KDS, based on her college attendance, and the claim must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER An additional allowance for school attendance of KDS, a dependent child over the age of 18, from August 2003 to December 2007, is denied. ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs