Citation Nr: 1236810 Decision Date: 10/24/12 Archive Date: 11/05/12 DOCKET NO. 10-15 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an effective date prior to April 1, 2009 for the addition of V.L, the Veteran's dependant school child over the age of 18, to the Veteran's award. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran served on verified active duty service from June 1976 to June 1996. This case is before the Board of Veterans' Appeals (Board) on appeal from an April 2009 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco Texas in which the RO added the Veteran's dependent school child over the age of 18, V.L. to his award, effective from April 1, 2009, the date of claim, to December [redacted], 2009, the day on which the Veteran's dependent school child, V.L. turned 23 years old. The Veteran disagreed with the April 1, 2009 effective date of the award and this appeal ensued. FINDINGS OF FACT 1. The Veteran's service-connected disabilities are rated greater than 30 percent disabling. 2. The Veteran's daughter, V.L., was born on December [redacted], 1986; she turned 18 years old on December [redacted], 2004, and graduated from high school in June 2005. 3. Before V.L. attained the age of 18, she was included as a dependent on the Veteran's award. In October 2004, the Veteran was filed a claim to have his daughter, V.L retained on his award from December [redacted], 2004, her eighteenth birthday, until her high school graduation in June 2005. 4. The Veteran was provided notice in November 2004 that the RO would continue payments for his daughter V.L. based on school attendance for a child over the age of 18 until June 1, 2005, the date of her high school graduation. 5. Accounting documents in the claims file show that the Veteran's award was reduced as of June 1, 2005, to discontinue payments on V.L.'s behalf as a dependent child attending school. 6. V.L. began attending college in the fall of 2005, and continued attending college through the spring of 2009; she turned 23 on December [redacted], 2009. 7. The Veteran did not notify VA of V.L.'s college attendance until he filed a claim on March 9, 2009, for additional compensation for V.L. based on school attendance of an unmarried dependent child between the ages of 18 and 23. 8. The Veteran's March 9, 2009 claim was filed within one year of the commencement of V.L.'s Fall Semester of 2008, which began on August 25, 2008. CONCLUSION OF LAW The criteria for entitlement to an effective date of August 25, 2008, but not earlier, for the addition of V.L. to the Veteran's award as a dependent school child over the age of 18, have been met. 38 U.S.C.A. § § 501, 5110 (West 2002); 38 C.F.R. § § 3.503, 3.667 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Pursuant to VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. However, in this case, the law, and not the facts, that are dispositive of the appeal. Therefore, the duties to notify and assist are not applicable to this claim. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011); Mason v. Principi, 16 Vet. App. 129 (2002). A Veteran who is in receipt of disability compensation of 30 percent or more is entitled to an additional allowance for each dependent. 38 U.S.C.A. §§ 1115, 1134, 1135 (West 2002). Specific rates are provided for the Veteran's spouse and children. 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.A. § 101(4)(A) (West 2002); 38 C.F.R. § 3.57(a) (2011). The allowance is generally discontinued when a dependent child turns 18, or when the child turns 23 if she is enrolled in school. 38 C.F.R. §§ 3.503, 3.667 (2011). Additional compensation may be paid from a child's eighteenth 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 those benefits is filed within one year from the child's eighteenth birthday. 38 C.F.R. § 3.667(a)(1) (2011). Compensation based upon a course of instruction at an approved educational institution which was begun after a child's eighteenth 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) (2011). A specific claim in the form prescribed by VA must be filed for benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. § 3.151 (2011); 38 U.S.C.A. § 5101(a) (West 2002). Individuals to whom benefits are being paid are required to certify, when requested, that any or all of the eligibility factors which established entitlement to the benefit being paid continue to exist. 38 C.F.R. § 3.652(a) (2011). When the required certification is received, benefits will be adjusted, if necessary, in accordance with the facts found. 38 C.F.R. § 3.652(b) (2011). If an application is incomplete, the claimant will be notified of the evidence necessary to complete the application. If the evidence is not received within one year from the date of such notification, compensation may not be paid by reason of that application. That applies to applications for increased benefits by reason of existence of a dependent. 38 C.F.R. § 3.109(a)(2) (2011). A review of the claims file indicates that the Veteran's daughter, V.L. was included as a dependent on the Veteran's award before the age of 18. An October 2004 VA Form 21-674c, Request for Approval of School Attendance indicates that the Veteran's daughter, V.L. started her senior year of high school in August 2004 and was expected to graduate in May 2005. In November 2004, the RO notified the Veteran that he would continue to receive payments on behalf of V.L. based on school attendance until June 1, 2005, the first day of the month following her graduation from high school. V.L. attained the age of 18 on December [redacted], 2004, and she graduated from high school in May 2005. On June 1, 2005, the Veteran's award was reduced, consistent with the notification he received in November 2004. Accounting documents in the claims file show a reduction in the Veteran's award as a result of the removal of V.L. as of June 1, 2005, due to the discontinuance of payments on V.L.'s behalf as a dependent child attending school. More specifically, a VA Form 21-8947 shows that the Veteran's award was reduced from $414.00 per month to $354.00 per month, effective June 1, 2005. In February 2009, the RO issued a rating decision which increased the Veteran's overall combined rating from 30 percent to 60 percent, effective July 15, 2008, and to 70 percent, effective September 27, 2008. Notice of that decision was provided to the Veteran in February 2009. The February 2009 notice indicated that the Veteran was being paid as a veteran with one dependent, his spouse. In response, the Veteran submitted a February 2009 letter from the registrar of the university at which V.L. had been attending certifying her attendance there since August 2005. Attached to that letter was the Enrollment Verification form showing V.L.s full-time enrollment and completion of all credits attempted since August 29, 2005, for Fall semester of 2005, Spring and Fall semesters in 2006, 2007, 2008, and the Spring semester of 2009. On a March 2009 VA Form 21-686c, Declaration of Status of Dependents, the Veteran indicated that V.L. was a college student between the ages of 18 and 23. That information was reiterated on a March 2009 VA Form 21-674, Request for Approval of School Attendance. That form also noted that V.L. began attending college at an accredited university in August 2005 and was expected to graduate with a bachelor's degree in December 2009. In April 2009, the RO notified the Veteran that the forms he submitted in March 2009 were considered a claim for additional benefits on behalf of his dependent school child, V.L., and that this claim was received on March 12, 2009. The April 2009 notice letter from the RO also explained that based on the submitted documents showing V.L.'s college attendance, she would be added back to his award as a dependent child attending school between the age of 18 and 23. The Veteran was further notified that the effective date for the addition of V.L. to the Veteran's award as a school child was effective March 12, 2009, the date of his claim; however, payments would begin on April 1, 2009 (the first day of the month following the effective date) and continue until V.L. turned 23, on December [redacted], 2009. In a Notice of Disagreement (NOD) received at the RO in July 2009, the Veteran disagreed with the effective date for the additional payment on behalf of V.L. The Veteran stated, "My wife and my daughter had always been listed as dependents. Since the increase of my disabilities (40% to 70%) somebody from that department mistakenly dropped my daughter off my dependent's list." In essence, the Veteran asserts that his award had always included an additional payment for V.L. until the effective date of the increased rating in July 2008. The Veteran did not believe that V.L. was removed from his award prior to July 2008. However, the Veteran was notified in November 2004 that his daughter would be removed from his award effective from June 1, 2005. Accounting records in the claims file clearly illustrate that the Veteran's monthly monetary sum was reduced as of June 1, 2005. The reduction of money paid to the Veteran on June 1, 2005, is entirely consistent with V.L.s high school graduation. Therefore, the Veteran had written notice in November 2004 of the impending reduction in his award as of June 1, 2005; and, he had actual notice of the reduction based on the reduction in the amount of monthly payments received beginning on that date. Although the Veteran sincerely believes that he was being paid as a veteran with two dependents, his spouse and V.L., from June 1, 2005, until July 2008, the record shows otherwise. Moreover, if the Veteran was, in fact, receiving an award which included V.L. from June 1, 2005, onward, then that was entirely in error based on the above facts. The RO correctly removed V.L. from the Veteran's award as of June 1, 2005, because she had attained the age of 18 and had graduated from high school. In order to add her back to his award, the Veteran was required to notify the RO that he had a dependent unmarried school age child attending college under the age of 23. To notify the RO, the Veteran needed to submit the documentation that he ultimately submitted in March 2009, which included certification of V.L.'s enrollment, and a VA Form 21-686c, Declaration of Status of Dependents, as well as a VA Form 21-674, Request for Approval of School Attendance. Because V.L. was correctly removed from the Veteran's award as of June 1, 2005, the Veteran was required to follow proper procedure to have her added back onto his award. The Veteran did not notify VA of V.L.'s college attendance until he filed a claim on March 9, 2009, for additional compensation for V.L. based on school attendance of an unmarried dependent child between the ages of 18 and 23. Because the effective date of an award is generally not earlier than the date of claim, the RO assigned an effective date of March 12, 2009, for the addition of V.L. to the Veteran's award. However, 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)(1)-(2) (2011). Based on that regulation, the effective date of the addition of V.L. to the Veteran's award may be up to one year prior to the date of claim since the enrollment form submitted by the Veteran shows that V.L. attended college courses at an approved educational institution for the entire one-year period prior to the receipt of the Veteran's March 9, 2009, claim. That regulation specifically states that the effective date may only be from the commencement of the course in cases whether the claim is filed within one year from that date. Although the term "course" is not specifically defined, interpreting the regulation in the most favorable light to the claimant, it is reasonable to assume that the commencement of a course means the beginning of a semester, or the beginning of an individual class in any given semester. Based on that assumption, the Veteran would be entitled to an effective date at some point within the one year period prior to the date of claim during which V.L. began any semester. Therefore, in the Veteran's case, one year prior to the March 9, 2009, claim would be March 9, 2008. That date, according to the university enrollment form, unfortunately falls after commencement of the Spring semester 2008 commencement date of January 7, 2008. Because January 7, 2008, is outside the one-year time frame, that date cannot be legally assigned as the effective date. The next commencement date for a semester or course of study, according to the university enrollment form is August 25, 2008, the beginning of the Fall 2008 semester. August 25, 2008 falls within the one-year period prior to the March 9, 2009, date of claim, and it is documented as the beginning of the Fall 2008 semester. Thus, August 25, 2008 fits squarely within the regulatory framework as a legally assignable effective date for the addition of V.L. to the Veteran's award based on a dependent school age child attending college under age 23. The Board finds no basis to assign any earlier effective date. To summarize, the Veteran's claim was filed within one year of the commencement of V.L.'s Fall Semester of 2008, which began on August 25, 2008. There is no earlier commencement date for a course of study or semester that falls within the one-year period prior to the date of the March 9, 2009, claim to add V.L. as a dependent to the Veteran's award. Therefore, August 25, 2008 is the earliest effective date assignable by law to add V.L. to the Veteran's award in accordance with 38 C.F.R. § 3.667(a)(2) (2011). 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An effective date of August 25, 2008, but not earlier, is granted for the addition of V.L. to the Veteran's award. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs