Citation Nr: 1752945	
Decision Date: 11/17/17    Archive Date: 11/22/17

DOCKET NO. 14-03 883	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Whether the Veteran is entitled to additional monetary benefits due to dependent child A.O.'s high school attendance from December [REDACTED], 2008 to August 21, 2009. 


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

A.M. Clark, Counsel

INTRODUCTION

The Veteran served on active duty from December 1964 to November 1966.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan that denied a request for a retroactive payment of benefits based on his child's school attendance from December [REDACTED], 2008 to August 21, 2009.

In April 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of this hearing is associated with the claims file. 


FINDINGS OF FACT

1. The record indicates that the Veteran's child A.O., after turning 18, attended high school full time from December 2008 until June 2009.

2. The Veteran did not properly notify VA, via a timely executed VA Form 21-674, of A.O.'s attendance in high school between December 2008 until June 2009.


CONCLUSION OF LAW

The criteria for an award of additional compensation for the Veteran's daughter A.O., as a dependent school child after her eighteenth birthday, between December [REDACTED], 2008 and August 21, 2009 have not been met. 38 U.S.C. §§ 1115, 5107, 5110 (2012); 38 C.F.R. §§ 3.4(b)(2), 3.57, 3.102, 3.503, 3.667 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Assist and Notify

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2017), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. The VCAA also requires VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.

The Board finds that under the facts of the present case, the law is dispositive of the issue. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Where, as here, the law is dispositive in a matter, the notice provisions of the VCAA have no effect. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). That is because no further notice or assistance to the Veteran would result in a different outcome because the facts make clear that the Veteran is not entitled to payment of additional compensation for his daughter A.O. as a dependent child based upon school attendance after her eighteenth birthday (December [REDACTED], 2008), and before her enrollment in community college (August 22, 2009). Accordingly, the Board finds that remand for further notification is not necessary. See Valiao v. Principi, 17 Vet. App. 229, 231-32 (2003) ("[w]here the facts averred by a claimant cannot conceivably result in any disposition of the appeal other than affirmance of the Board decision, . . . [t]he failure to carry out . . . required development under those circumstances is nonprejudicial error").

Additionally, VA has no further 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. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001). Here, the Board has carefully considered the Veteran's arguments but finds that the law is dispositive. The facts are clear that the Veteran did not provide a VA Form 21-674 within one year of A.O.'s eighteenth birthday based on her high school attendance. Moreover, because the issue is not medical in nature, there was no duty to provide a medical examination or obtain a medical opinion.

II. Analysis

The Veteran seeks additional monetary benefits due to a dependent child A.O. for the period following her 18th birthday based on high school attendance from December [REDACTED], 2008 to August 21, 2009. He essentially argues that since she turned 18 in December 2008 while still in high school, additional benefits based on her education should have continued until she finished high school.

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. §§ 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. § 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. § 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).

The evidence of record shows that the Veteran was notified, via letter dated on April 27, 2009, of his award of VA compensation, which resulted in a combined disability evaluation of 40 percent. The letter noted that he was being paid as a single veteran with no dependents. In a VA Form 21-686c, Declaration of Status of Dependents, received in May 2009, the Veteran indicated that he was married and had a daughter, A.O. He failed to indicate on the form that his daughter was 18-23 years old and in school.

In a June 2009 letter, the Veteran was informed that his dependents had been added to his award. It was noted that he was being paid as a veteran with 2 dependents. It was also noted that an adjustment would be made December [REDACTED], 2008 for "minor child adjustment." The letter specifically stated that unmarried children under 18 (or under 23 if attending an approved school) could result in additional compensation. 

In July 2009, the Veteran's daughter A.O. filed a VA Form 21-674 indicating that she was a student at a community college beginning August 22, 2009. A tuition bill was submitted. The Veteran was contacted to let him know he was required to submit the form as he was the one who was going to receive the dependency benefit. He submitted a corrected VA Form 21-674 on September 30, 2009. Although he noted that A.O. had attended school at the end of the last school term at B. High School, he based his request for approval on the local community college. In a December 9, 2009 letter, the Veteran was informed that he was going to be paid as a Veteran with two dependents. It was noted that his daughter A.O. was added to his award effective August 22, 2009. The letter specifically noted that 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 intuition and a claim for such benefits is filed within 1 year of the child's 18th birthday. The Veteran was informed that if he did not agree with their decision he could appeal. The Veteran did not appeal this decision within one year and it became final. 

In an August 2011 statement, the Veteran, through his representative, asked that his daughter A.O. be removed as a dependent because she was married on July 23, 2011. In a February 16, 2012 letter the VA informed the Veteran that his daughter was removed from his award on August 1, 2011. It was explained that he had been paid as a veteran with 2 dependents, to include an additional amount for his spouse and his child until his child's 18th birthday, at which time he was paid as a veteran with one dependent. The VA further indicated that from the first of the month following A.O.'s commencement of courses, September 1, 2009 until the first month following her marriage, his daughter was added onto his award as a school child. It was then noted that from August 1, 2011 he was being paid as a veteran with 1 dependent to include his spouse. It was noted that he should inform the VA right away if there was any change in the status of his dependents. 

In a VA Form 21-674, Request for Approval of School Attendance, received October 2012, the Veteran noted that his daughter A.O. had been a student at B. High School from September 2008 to June 2009. A copy of her high school transcript was submitted. He noted that his daughter had turned 18 while a senior in high school and he wanted to make sure that she was added to his award for that time period. 

In June 2013, the RO denied the Veteran's claim for retroactive benefits, stating that because the Veteran had not informed VA of A.O.'s school attendance within a year of her eighteenth birthday, additional benefits from December [REDACTED], 2008 through August 22, 2009 could not be paid. In disagreeing with that decision, the Veteran noted that his daughter was currently in college but was taken off as a dependent after she turned 18. He stated that during this time she was still under his care and was attending high school full time. In his VA Form 9 the Veteran stated that he had completed the required Form 21-674 to the best of his understanding and he had intended to state that his daughter was attending high school during the period in question.  

Upon review of the record, the Board finds that there is no basis upon which to award additional compensation for A.O. as a dependent school child at any point from December [REDACTED], 2008 to August 21, 2009 based on her high school attendance. At the outset, the Board cannot conclude, based on the record and lay assertions of the Veteran, that the Veteran did seek to add A.O. on his award in a timely manner based on her status as a school child after she turned 18. The Board finds no other document dated prior to October 2012 that informs VA of A.O.'s high school attendance after she turned 18 for which he was seeking approval. Thus, the earliest that it can be said that the Veteran sought additional compensation based upon A.O's status as a dependent school child was October 1, 2012, the date of the VA From 21-674 wherein it was reported that A.O. was still in high school when she turned 18. While the Board recognizes that the September 2009 VA Form 21-674 noted that A.O. had been in high school the last school term, the basis of approval of school attendance was specifically noted to be the local community college beginning August 22, 2009.

Notably, 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 1year from the child's 18th birthday." 38 C.F.R. § 3.667(a)(1). 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 of study if a claim is filed within 1 year from that date." 38 C.F.R. § 3.667(a)(2).

Here, although the Veteran may have been entitled to additional compensation benefits for his daughter A.O., as a dependent school child from the date of her eighteenth birthday on December [REDACTED], 2008, until she completed high school, because the Veteran did not submit a VA Form 21-674 based on her high school attendance within a year of A.O.'s 18th birthday, payment of additional compensation for A.O., as a dependent school child, is not warranted as a matter of law between December [REDACTED], 2008 and August 21, 2009. 38 C.F.R. § 3.667(a)(1), (2).

The Board has considered the Veteran's argument that he was essentially not informed of the need to notify VA of A.O.'s status as a dependent school child after her eighteenth birthday until February 2012. However, as noted above, in a June 2009 letter the Veteran was informed that his dependents had been added to his award. It was noted that he was being paid as a veteran with 2 dependents. It was also noted that an adjustment would be made December [REDACTED], 2008 for "minor child adjustment." The letter specifically stated that unmarried children under 18 (or under 23 if attending an approved school) could result in additional compensation. 

Additionally, in a December 9, 2009 letter, the Veteran was informed that he was going to be paid as a Veteran with two dependents. It was noted that his daughter A.O. was added to his award effective August 22, 2009. The letter specifically noted that 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 intuition and a claim for such benefits is filed within 1 year of the child's 18th birthday. The Veteran was informed that if he did not agree with their decision he could appeal. The Veteran did not appeal this decision within one year and it became final. He did not at that time inform the VA that his daughter had turned 18 while in high school on December [REDACTED], 2008. In this regard, the Board notes that VA is under no legal obligation to individually notify every potential claimant of his or her possible entitlement to VA benefits. Lyman v. Brown, 5 Vet. App. 194 (1993); Hill v. Derwinski, 2 Vet. App. 451 (1991).

The Board sympathizes with the Veteran's contention that since he was legally entitled to additional compensation for his daughter A.O. as a dependent school child, he should be entitled to a retroactive award of that compensation. Unfortunately, the regulation is clear that claims for additional compensation for dependents over the age of 18, based on their enrollment in a course of instruction at an approved institution, must be filed within a set time limit. Because the Veteran's claim was not filed with the prescribed timeframe for filing such a claim, the Board has no authority to grant entitlement to additional dependency compensation for the Veteran's daughter A.O. as a dependent school child at any point between December [REDACTED], 2008 and August 21, 2009. 


ORDER

Entitlement to an award of additional dependency compensation for the Veteran's daughter, A.O., as a dependent school child, from December [REDACTED], 2008 to August 21, 2009 is denied.



____________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs