Citation Nr: 1753565	
Decision Date: 11/22/17    Archive Date: 12/01/17

DOCKET NO. 14-10 259	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Whether the Veteran is entitled to additional monetary benefits due to dependent child J.M.'s high school attendance from August 10, 2009 to May 15, 2010. 


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

A.M. Clark, Counsel

INTRODUCTION

The Veteran served on active duty from April 1985 to April 1989. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida that denied a request for a retroactive payment of benefits based on his child's school attendance from August 10, 2009 to May 15, 2010.

In June 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 J. M., after turning 18, attended high school full time from August 2009 to May 2010.

2. The Veteran did not properly notify VA, via a timely executed VA Form 21-674, of J.M.'s attendance in high school between August 2009 and May 2010.


CONCLUSION OF LAW

The criteria for an award of additional compensation for the Veteran's son J. M., as a dependent school child after his eighteenth birthday, between August 10, 2009 and May 15, 2010 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 (2012), 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 son J.M. as a dependent child based upon school attendance after his eighteenth birthday (April [REDACTED], 2009) for his senior year of high school from August 10, 2009 to May 15, 2010. 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 J.M.'s eighteenth birthday based on his high school attendance or within one year from the commencement of his son's senior year of high school. 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 J.M. for the period following his eighteenth birthday based on high school attendance from August 10, 2009 to May 15, 2010. He essentially argues that since he turned 18 in April 2009 while still in high school, additional benefits based on his education should have continued until he 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 eighteenth 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 eighteenth birthday. 38 C.F.R. § 3.667(a)(1). Additionally, pension or 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 1 year from that date. 38 C.F.R. § 3.667(a)(2). 

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 November 24, 1993 that his son James was added to his award effective May 1, 1991. In a VA Form 21-686c, Declaration of Status of Dependents, received in April 1995, the Veteran indicated that he was married and had two children. He noted that his children were both under 18 years of age. On the form there is an option to mark "over 18 and under 23 and attending school." 

In an October 1997 letter to the Veteran it noted that the compensation he receives for his service-connected disability includes an additional amount for his spouse and/or child(ren). It indicated that the Veteran was responsible for reporting any changes in the number of his dependents. He was informed that "if there is no change in the number of your dependents you will continue to receive your present rate." It further stated that "if the number of your dependents has changed, we will reduce or increased your payments accordingly." In March 1998, the Veteran requested that his third child D.M. be added to his award.

In a letter sent to the Veteran on September 30, 2005 he was again informed that he was responsible for reporting any changes in the number of his dependents. In a Status of Dependents Questionnaire subsequently submitted by the Veteran on November 16, 2005, the Veteran listed his wife and his three children. In the section where the Veteran listed his children it is noted that each child under age 18, over age 18 and under 23 and attending school, or of any age if permanently disabled should be listed. The Veteran signed and dated the form. 

The Board notes that the forms sent to the Veteran and submitted and signed by him mentioned on several occasions that children over age 18 and under 23 and attending school were considered a different category. 

In a Request for Approval of School Attendance, VA Form 21-674, submitted by the Veteran in July 2011 (date stamped July 21, 2011) the Veteran requested that J.M.'s attendance at P.B. High School from August 10, 2009 to May 15, 2010 be approved. The Veteran noted that his son had to repeat the 7th grade and as a result he graduated from high school at age 19, not 18. 

In August 2011, the RO denied the Veteran's claim for retroactive benefits, stating that because the Veteran had not informed VA of J.M.'s school attendance within a year of his eighteenth birthday, additional benefits could not be paid. The Board notes that the RO incorrectly noted in the August 2011 decision that the Veteran's dependency claim had been filed on July 21, 2010. The actual date of his filed VA Form 21-674 was July 21, 2011 (this is when it was date-stamped). In disagreeing with that decision, the Veteran stated in his notice of disagreement that he was unaware that VA disability was based on how many people are living in his home. He stated that since his son was still in high school at age 18 he needed to get that portion of his pay restored to him. He admitted that he missed the one year deadline following his son's eighteenth birthday to notify VA because he was not aware of the deadline. He noted that he had never been told that his pay is based on family size and that as his children grow older he would lose benefits based on that. These arguments contradict the forms and statements signed by the Veteran noted by the Board above. In correspondence submitted with his substantive appeal the Veteran essentially states that he missed the deadline because he did not know there was the requirement to inform the VA if his child was 18 and still in high school. He requested that he be refunded the back pay compensation owed to him for the one year his son remained in school. The Veteran testified at his June 2017 BVA hearing that he was never properly informed of his VA benefits and what they were based on. 

Upon review of the record, the Board finds that there is no basis upon which to award additional compensation for J.M. as a dependent school child at any point from his eighteenth birthday (April [REDACTED], 2009) until his graduation from high school on May 15, 2010, based on his high school attendance. At the outset, the Board cannot conclude, based on the record and lay assertions of the Veteran, that he sought to add J.M. on his award in a timely manner based on his status as a school child after he turned 18. The Board finds no other document dated prior to July 21, 2011 that informs VA of J.M.'s high school attendance after he turned 18 for which he was seeking approval. Thus, the earliest that it can be said that the Veteran sought additional compensation based upon J.M.'s status as a dependent school child was July 21, 2011, the date of the VA From 21-674 wherein it was reported that J.M. was still in high school when he turned 18. 

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 son J.M. as a dependent school child from the date of his eighteenth birthday on April [REDACTED], 2009, until he completed high school, because the Veteran did not submit a VA Form 21-674 based on his high school attendance within a year of J.M.'s 18th birthday (by April [REDACTED], 2010) or within a year of the commencement of the course (by August 10, 2010), payment of additional compensation for J.M., as a dependent school child, is not warranted as a matter of law between August 10, 2009 and May 15, 2010. 38 C.F.R. § 3.667(a)(1), (2). The evidence clearly shows that the Veteran did not file his claim until July 21, 2011, more than a year after J.M. turned 18 years old and more than a year after he commenced his senior year of high school.

The Board has considered the Veteran's argument that he was essentially not informed of the need to notify VA of J.M.'s status as a dependent school child after his eighteenth birthday. However, as noted above, in various letters to the Veteran and forms submitted by the Veteran, since the early 1990's the Veteran was informed that children between 18-23 and attending school were considered under a different category than dependents under age 18. 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 son J.M. 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 son J.M. as a dependent school child at any point between August 10, 2009 and May 15, 2010. 




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ORDER

Entitlement to an award of additional dependency compensation for the Veteran's son J.M., as a dependent school child, from August 10, 2009 to May 15, 2010, is denied.



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



Department of Veterans Affairs