Citation Nr: 1610548 Decision Date: 03/16/16 Archive Date: 03/23/16 DOCKET NO. 12-32 753 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to additional dependency benefits based on school attendance from September 2009 to May 2010 for the Veteran's daughter, B.H. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant (Veteran) ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from March 1982 to September 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In January 2016, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference Board hearing. A transcript of the hearing is of record. FINDINGS OF FACT 1. During the period from September 2009 to May 2010, the Veteran's combined rating for service-connected disabilities was 70 percent. 2. The Veteran's daughter, B.H., was born in March 1992, and turned 18 years old in March 2010. 3. During the period from September 2009 to May 2010, the Veteran's daughter, B.H., was enrolled in a home school program through A Beka Academy, an educational program based in Florida. 4. The home school program through A Beka Academy was approved by the Washington state authority that determines educational standards. CONCLUSION OF LAW Resolving reasonable doubt in the appellant's favor, the criteria for additional dependency benefits based on school attendance from September 2009 to May 2010 for the Veteran's daughter, B.H., have been met. 38 U.S.C.A. §§ 1115, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.57(a), 3.102, 3.503, 3.667 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The issue of entitlement to an additional dependency benefits based on school attendance from September 2009 to May 2010 for the Veteran's daughter, B.H., has been considered with respect to VA's duties to notify and assist. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Given the favorable outcome of the appeal, which is a full grant of benefits sought, the appeal has been substantiated, obviating the need for further discussion of how VA fulfilled the duties to notify and assist with respect to this issue. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Additional Dependency Benefits Legal Criteria 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. 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 (2015). The term "educational institution" means a permanent organization that offers courses of instruction to a group of students who meet its enrollment criteria, including schools, colleges, academies, seminaries, technical institutes, and universities. The term also includes home schools that operate in compliance with the compulsory attendance laws of the States in which they are located, whether treated as private schools or home schools under State law. The term "home schools" is limited to courses of instruction for grades kindergarten through 12. 38 C.F.R. § 3.667. In order for VA to recognize a home school as an educational institution, the claimant must provide documentation verifying the following: (1) the home school is approved by the State authority that determines educational standards, or; (2) the student is registered and in good standing as a home-schooled student with the local school district, or; (3) that another institution, organization, or entity (such as a non-traditional private school) is registered with or recognized by the State in which the home school is located. VBA Manual M21-1, III.iii.6.A.3.b. Additional Dependency Benefits Analysis The Veteran contends that she is eligible for additional dependency allowance for the period from September 2, 2009 to May 4, 2010 when her dependent daughter, B.H., was home schooled. The Veteran's service-connected disabilities were rated at 30 percent or greater (i.e., 70 percent) for the entire period at issue; therefore, the threshold criteria for basic entitlement to additional payment for dependents were then met. 38 U.S.C.A. § 1115. As a preliminary matter, the Veteran's daughter, B.H., was born in March 1992, turned 18 years old in March 2010, and continued to pursue a course of instruction by way of the home school program through A Beka Academy until she earned a high school diploma in May 2010. Thus, because the service-connected disabilities were rated at 30 percent or greater during the period at issue, and the Veteran's daughter was a dependent child between the ages of 18 and 23 attending school full-time, the issue on appeal turns on the question of whether a home school program through A Beka Academy may be considered an "approved" educational institution for VA dependency compensation purposes. After review of all the evidence of record, and resolving reasonable doubt in the appellant's favor, the criteria for additional dependency benefits based on school attendance from September 2009 to May 2010 for B.H. are met. At the Board hearing, the Veteran testified that the dependent (i.e., her daughter, B.H.) was unable physically to attend school from September 2009 to May 2010 due to a health problem, and completed high school by way of home schooling through A Beka Academy, a private educational program that administers the curriculum. The Veteran explained that, during the period at issue, the dependent was enrolled in the home school program through A Beka Academy and mailed all tests to A Beka Academy, which roughly followed individual state requirements. The Veteran testified that A Beka Academy handled report cards, graded tests, and required the dependent to report to certain locations for administration of standardized tests. The Board takes notice that A Beka Academy is based in Florida, offers a home school educational program for students from kindergarten through high school, instructs all parents to inform their local school district that their child will be enrolled in a home school environment, directs all parents to contact their local school districts or home school authority to ensure compliance with the academic standards and attendance requirements for their state, and ensure that their student has met the state's requirements for achievement tests. https://www.abekaacademy.org/about/accreditation.aspx. In this case, the RO made no attempt to obtain documentation verifying that the dependent was registered in good standing as a home-schooled student with the local school district (in the State of Washington) during the period at issue. Nevertheless, evidence that a home school is approved by the state authority that determines educational standards is sufficient to establish a home school as an approved educational institution for VA dependency benefits purposes. VBA Manual M21-1, III.iii.6.A.3.b. Under Washington state law, home-based students are annually assessed by use of standardized testing. The State Board of Education is responsible for approving standardized achievement tests that parents of home schooled students may use to assess and determine whether their child is making reasonable academic progress. A standardized achievement test approved by the State Board of Education is administered according to protocol annually to the child by a qualified individual; or, an annual assessment of the student's academic progress is written by a certified person who is currently working the field of education. Revised Code of Washington 28A.200.010. As noted by the Veteran, the state of Washington only requires 19 credits for graduation. Washington Administrative Code 180-51-061. Because A Beka Academy specifically advised parents of home-schooled students to ensure that the state's requirements for achievement tests were met, Washington state requires annual standardized achievement tests from an approved list to assess a home-schooled student's academic progress, the Veteran credibly testified that the dependent had to report to certain locations for the administration of standardized tests during the period at issue, the dependent earned a high school diploma through A Beka Academy in May 2010, and the number of credits required for graduation (i.e., 24 credits) exceeded the number of credits required for graduation by Washington state (i.e., 19 credits), it is reasonable to infer that the dependent's participation in the home school program through A Beka Academy for the period from September 2009 to May 2010 was approved by the Washington state authority that determines educational standards; therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that it is an approved educational institution for VA additional dependency benefits purposes. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Additional dependency benefits based on school attendance from September 2009 to May 2010 for the Veteran's daughter, B.H., are granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs