Citation Nr: 1545932 Decision Date: 10/29/15 Archive Date: 11/10/15 DOCKET NO. 11-31 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Whether the Veteran is entitled to additional monetary benefits due to a dependent child's school attendance from May 2007 to June 2008. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran served on active duty from September 1980 to June 1984. This case comes before the Board of Veterans' Appeals (Board) on appeal from a determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon that denied a request for a retroactive payment of benefits based on his child's school attendance from May 2007 to June 2008. The Veteran's record before the VA consists of an electronic record located in Veterans Benefits Management System (VBMS)/Virtual VA. FINDINGS OF FACT 1. The record indicates that the Veteran's child P.H., after turning 18, attended high school full time from May 2007 until June 2008. 2. The Veteran did not properly notify VA, via a timely executed VA Form 21-674, of P.H.'s attendance in school between May 2007, and June 2008. CONCLUSION OF LAW The criteria for school child benefits, based on school attendance of the Veteran's child P.H., from May 2007 to June 2008, are not met. 38 U.S.C.A. § 101 (West 2014); 38 C.F.R. §§ 3.57, 3.503, 3.667 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Preliminary Matters The Veterans Claims Assistance Act of 2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126), imposes obligations on VA in terms of its duty to notify and assist claimants. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). However, because the law is dispositive of the issue addressed herein, see Sabonis v. Brown, 6 Vet. App. 426 (1994), the duties to notify and assist are not applicable. Mason v. Principi, 16 Vet. App. 129 (2002). See also, Manning v. Principi, 16Vet. App. 534, 542 (2002) (VCAA can have no effect on appeals that are decided on an interpretation of the law as opposed to a determination based on the fact); Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Further, VA has no duty to assist the Veteran in obtaining evidence where, as here, there is no reasonable possibility that any further assistance would aid him in substantiating his claim. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001). Accordingly, the Board will address the merits of the claim. II. Additional monetary benefits due to P.H.'s school attendance from May 2007 to June 2008 The Veteran seeks additional monetary benefits due to a dependent child P.H. for the period following her 18th birthday based on school attendance from May 2007 to June 2008. He argues that since she turned 18 in May 2007 while still in high school, additional benefits based on her continuing education should have continued until she finished high school in June 2008. 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. Specific rates are provided for a 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); 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. Pension or compensation may be paid from a child's 18th birthday based on 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 1 year from the child's 18th birthday. 38 C.F.R. § 3.667(a)(1). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). However, to establish a claim, the Veteran must assert the claim expressly or impliedly. Brannon v. West, 12 Vet. App. 32, 35 (1998). See also Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995) (holding that, while the Board must interpret a veteran's submissions broadly, the Board is not required to conjure up issues that were not raised by the veteran). Indeed, VA's duty to adjudicate all claims reasonably raised does not require VA to anticipate a claim for a particular benefit where no intention to raise it was expressed. See Brannon, supra. According to 38 C.F.R. § 3.151, a specific claim in the form prescribed by the VA Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. See 38 U.S.C.A. § 5101(a). 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). 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). Historically, service connection is in effect for severe headaches due to head trauma, skull fracture right parietal area, and history of seizures, memory loss and hallucinations associated with residuals of skull fracture right parietal area. An 80 percent combined rating and a total rating based on individual unemployability due to service-connected disabilities has been in effect since September 1999. A March 2000 master record audit listed several dependent children; one of whom was P.H., born in May 1989. In March 2000, the Veteran was notified that his disability compensation award included additional compensation for his three dependent children. The letter also noted that the additional compensation for each child would be terminated on the date at which each child turned 18 years old. The letter stated that benefits for P.H. were scheduled to be terminated in May 2007. The record indicates that dependency benefits were paid for P.H. through April 2007. In August 2007, the Veteran submitted a letter requesting that benefits for P.H. which had stopped as of May 2007 be reinstated based on the fact that P.H. was still in high school even though she turned 18 in May 2007. He reported the P.H. would be returning to the same high school that year. He enclosed a print out of a course list for P.H. dated in September 2007. The school registrar signed the print out and stated that P.H., "will be returning to Baker HS as a senior this year." The Veteran's letter was submitted under a cover letter sent from his accredited service representative. In January 2008, the RO sent the Veteran and his representative a letter informing him that they were working on his application for dependency. The letter also informing him that a completed VA Form 21-674, Request for Approval for School Attendance was needed to add P.H. as a dependent and process his claim. In an April 2008 letter, the RO informed the Veteran and his representative that the claim was denied because a VA Form 21-674, Request for Approval of School Attendance was not received. He was informed that he should submit the form as soon as he could, and was told that if the RO received the completed form by January 9, 2009 it could continue processing the claim. If the form was received after January 9, 2009, it would be considered a new claim. The Veteran submitted a written statement in October 2008 again asking for back pay of dependency benefits based on P.H.'s high school attendance from May 2007 through June 2008. He noted that P.H. graduated in June 2008. He enclosed his original August 2007 letter. The Veteran's letter was submitted under a cover letter sent from his accredited service representative. In response to his October 2008 statement, the RO sent him and his representative a May 2009 letter explaining that he had been notified in April 2008 that the claim had been denied and that the required VA form 21-674 that had been sent to him had not been returned. He was told that the claim remained denied because the form had not been returned. He was informed that VA was now unable to pay for the dependency of P.H. between her 18th birthday and her graduation from Baker High School but if she attends school from the present to age 23 VA can pay dependency benefits provided he submits a completed VA Form 21-674 Request for Approval of School Attendance. This form was again included as an attachment. Ultimately, the completed VA Form 21-674, Request for Approval of School Attendance was received June 8, 2009, along with a transcript of P.H.'s high school courses with signature of a school official showing she attended school full time from August 2005 through June 2008. Again, this was submitted under cover letter from the Veteran's representative. In December 2009, the VA informed the Veteran and his representative that the claim remained denied. It noted that the time for him to file this evidence to complete the claim as to the time period from May 2007 to June 2008 has passed, explaining that it would have been possible to add P.H. as a school child beginning the date the RO received this VA Form 21-674, but P.H. had already completed schooling. The Veteran disagreed with this determination in December 2009, noting he had sent numerous letters and supportive evidence (August 13, 2007, September 15, 2008 and May 26, 2009) during the relevant period. The November 2011 statement of the case explained to the Veteran that the VA Form 21-674 was first submitted to the VA on June 8, 2009, and P.H.'s last date of full time school was in June 2008. As such this was considered a new claim, which was not timely received by the VA because she had finished school by the time it was submitted and because it was submitted over a year after she turned 18. In his November 2011 substantive appeal, the Veteran argues that although he missed deadlines with respect to the appeal, the claim should be paid because he eventually did submit the information. Also he urges that due to his service-connected head trauma, headaches, seizures and hallucinations, he has difficulty tracking paperwork. At his hearing before the undersigned, he urged that since he provided the VA with evidence that his daughter was, after turning 18, in high school after May 2007 but before she graduated in June 2008, he should have been able to obtain benefits for her during that time. He stated that he has severe memory impairment, so that is why he did not return the form timely. His wife stated that the process was held up because the Veteran did not give her the paperwork to fill out when he first received it. She reported he is in and out of the hospital for a variety of medical problems. As noted, the regulations provide that 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. 38 C.F.R. § 3.667(a)(1). The Veteran's child P.H. was 18 years old in May 2007. A claim for benefits based on school attendance with the prescribed form, VA Form 21-674, filled out and completed, was not received by VA until June 2009. Therefore, the Board finds that the Veteran did not complete the required process to file the claim within the one year time period set forth in the controlling regulations. While the Veteran argues he submitted enough information prior to June 2008 for the VA to allow him the benefit, the Board notes by analogy that while acceptance of a claimant's written statement may be evidence of the existence of a dependent, it is only acceptable when it contains specific, required information. See McColley v. West, 13 Vet. App. 553, 557 (2000). Here, the specific information required, found in the completed VA Form 21-674, was not timely received. Thus, the critical issue in this case is that the VA form 21-674 was required to be filed within the time frame set forth by the RO and also prior to P.H.'s completing school. See 38 U.S.C.A. § 5101(a); C.F.R. § 3.151, 3.652, 3.667(a)(1). Neither of these things happened. Inasmuch as he did not timely return the VA Form 21-674, both he and his representative were apprised of the need to submit the form on three occasions. The duty to assist the Veteran is not a one-way street. Olsen v. Principi, 3 Vet. App. 480 (1992). Rather, VA's duty is just what it states, a duty to assist, not a duty to prove a claim with the claimant only in a passive role. If a veteran wants help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 406 (1991). Where, as here, evidence requested in connection with an original claim is not furnished within 1 year after the date of request, the claim is considered abandoned. 38 C.F.R. § 3.158 (2015). Relevant to his argument that he was unable to complete the required VA Form 21-674 due to symptoms of his seizures and head trauma, the Board is not persuaded that this is the case. VA treatment records do show that the Veteran was treated for confusion for 2 days in late July 2008 and was hospitalized for 4 days for encephalopathy in August 2008. His wife had reported observing his erratic and disorganized behavior for the past several weeks. The Veteran described having visions linked with his Native American spiritual practices. It was also noted during the work-up that he danced and sweated but denied use of peyote. He was given mood stabilizer and released. This does not suggest that he was incapacitated and unable to fill out the form for an extended time period. He has provided no opinion from a medical or mental health professional to support a finding that he was incapacitated. Moreover, after he submitted his statement in August 2007, the Veteran demonstrated a familiarity with the conditions and requirements regarding additional compensation for dependent children over 18 years of age. He indicated on several occasions that he was submitting evidence in support of his claim that P.H. continued in school. The record reflects that he also had contacts with VA on various other matters. Nevertheless, with regard to P.H.'s school attendance between May 2007 and June 2008, VA did not receive a properly executed VA Form 21-674 until June 9, 2009. See 38 C.F.R. § 3.667(a)(1). Such was required in this claim. To reiterate, the Board is not persuaded that he was unable to submit the form during the relevant time period. He was not declared incompetent during this time period. Furthermore, he was represented by an accredited service organization during the entire process of this claim who also received notice that the form was required to obtain the benefit sought. As such, the Board reasonably concludes that the Veteran and his representative had adequate knowledge and that he was capable of submitting these forms appropriately, either alone or with the help of his representative. Despite being given ample opportunity to furnish the Form 21-674 in a timely manner, he did not do so. In sum, the record is uncontroverted that P.H. continued high school after her 18th birthday in May 2007 for an additional year. The record indicates that she did complete high school in June 2008. The Veteran did not file a timely VA Form 21-674 with respect to the last year of her high school attendance. This form was required to complete the claim. As such, additional compensation for this attendance is not warranted. The Veteran's claim for additional compensation must be denied. ORDER Entitlement to additional monetary benefits due to a dependent child's school attendance from May 2007 to June 2008 is denied. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs