Citation Nr: 1216655 Decision Date: 05/09/12 Archive Date: 05/16/12 DOCKET NO. 10-19 184 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an effective date prior to March 4, 2008, for dependent school child allowance for the Veteran's daughter, J. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from September 1980 to September 1992, April 1997 to September 1998 and October 1998 to September 2000. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2008 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge at a February 2012 hearing conducted at the RO. A transcript of the hearing is of record. FINDINGS OF FACT 1. The Veteran's daughter J., was born in October 1985, reached the age of 18 in 2003 and commenced courses at an approved educational institution on August 23, 2004. 2. Resolving all reasonable doubt in the Veteran's favor, the Veteran submitted a VA Form 21-674, Request for Approval of School Attendance, in August 2004. CONCLUSION OF LAW The criteria for an effective date of August 23, 2004, but no earlier, have been met for the award of dependent school child allowance for the Veteran's daughter, J. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.667 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Since the entire benefit sought on appeal has been granted, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)). See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Analysis The Veteran seeks an effective date earlier than March 4, 2008, for dependent school child allowance for his daughter, J. The assignment of March 4, 2008, for the award of such benefits is based on the receipt on this date of VA Form 21-674, Request for Approval of School Attendance. However, the Veteran asserts he had submitted a copy of this form in August 2004, just prior to his daughter's commencement of courses at the University of Florida on August 23, 2004. 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 1 year from that date. 38 C.F.R. § 3.667(a)(2) (2011). The Veteran was awarded a disability rating of at least 30 percent beginning in October 2000. His daughter, J. was born in October 1985; she turned 18 in October 2003. In August 2003, the Veteran submitted a VA Form 21-674, noting that J. was then a student in high school, expecting to graduate in May 2004. In a September 2003 letter to the Veteran notifying him of a recent decision on a claim, the RO detailed his entitlement and payment amounts. The letter notified the Veteran that his award reflected an increased payment for J. effective November 1, 2003, because she was over the age of 18 effective October 30, 2003. The letter further detailed that there would be a dependency change June 1, 2004. No further details were provided regarding the significance of that date. The monthly entitlement amount was withheld each month due to recoupment. The critical issue in this case is whether the Veteran filed a claim for approval of his daughter's university attendance within one year of August 23, 2004, the date courses began. At the February 2012 Board hearing, the Veteran testified that he submitted the required form in August 2004 in person at the James A. Haley Veterans Hospital, a copy of which he submitted directly to the Board at the February 2012 hearing. He stated that the VA representative entered the information from the form into the computer and that, since his entire compensation amount was being withheld due to recoupment of separation pay, he had no knowledge that his dependency claim had not been processed. Finally, the Veteran testified that he followed up on his request by telephone, and his representative indicated that an internal VA database notes at least one call to VA, on March 9, 2006, requesting the status of his dependency claim. In considering the Veteran's assertions that he submitted his claim in August 2004, it is the Board's principal responsibility to assess the credibility, and therefore the probative value of proffered evidence and the record in its whole. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); see also Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000). In light of the evidence of record, including the Veteran's sworn hearing testimony, his representative's statements that internal VA record indicate the Veteran telephoned to request the status of his claim in March 2006, the fact that the Veteran was not receiving a monthly payment which may have caused him to question the amount and resolving all doubt in the Veteran's favor, the Board finds the Veteran's testimony that he submitted VA Form 21-674 in August 2004 is credible. When the evidence is in "relative equipoise, the law dictates that the Veteran prevails." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, finding the Veteran's testimony credible and accepting that he filed the required form in August 2004, the Board finds that an effective date of August 23, 2004, the date the Veteran's daughter commenced courses at an approved educational institution, is warranted. See 38 C.F.R. § 3.667(a)(2). ORDER An effective date of August 23, 2004, for dependent school child allowance for the Veteran's daughter is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs