Citation Nr: 1804721 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 11-09 247 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an initial disability rating (or evaluation) for lumbar spine degenerative arthritis, in excess of 10 percent from November 25, 2008 to December 17, 2010, and in excess of 40 percent from December 17, 2010. 2. Entitlement to additional dependency benefits based on school attendance for the Veteran's daughter, C.F. WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from February 1988 to December 1988. This appeal comes to the Board of Veterans' Appeals (Board) from March 2010, February 2011, April 2013 and May 2013 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. A claim for service connection for low back pain was received in November 2008. The March 2010 rating decision, in pertinent part, granted service connection for lumbar spine degenerative arthritis and assigned a noncompensable (0 percent) initial disability rating effective November 25, 2008 (the day the service connection claim was receive by VA). The February 2011 rating decision assigned a 10 percent initial disability rating for lumbar spine degenerative arthritis effective November 25, 2008. The May 2013 rating decision, in pertinent part, granted a 40 percent disability rating for lumbar spine degenerative arthritis effective December 17, 2010, creating "staged" initial disability ratings. In August 2011, the Veteran submitted a declaration of status of dependents (on a VA Form 21-686c) claiming additional dependency benefits for his spouse and three children. The April 2013 decision granted additional dependency benefits for the spouse and two of three dependent children. In May 2013, the Veteran filed a notice of disagreement with the April 2013 decision on the basis that he was entitled to additional dependency benefits based on school attendance of his daughter, C.F. In October 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge at the local RO in Indianapolis, Indiana (Travel Board hearing). A transcript of the hearing is of record. FINDINGS OF FACT 1. At the October 2017 Board hearing, before a Board decision was issued, the Veteran expressed the desire to withdraw the appeal for higher initial disability ratings for lumbar spine degenerative arthritis. 2. The Veteran has been in receipt of a combine rating for service-connected disabilities of at least 30 percent since December 17, 2010. 3. The Veteran's daughter, C.F., was born in October 1989, turned 18 years old in October 2007, started college in August 2008, turned 23 years old in October 2012, and graduated college in December 2012. 4. In August 2011, the Veteran submitted a VA claim (on a VA Form 21-686c, declaration of status of dependents) for additional compensation benefits for dependent children, including based on school attendance of daughter, C.F. 5. In May 2013, following the grant of compensation benefits establishing entitlement to dependency benefits, the Veteran resubmitted the August 2011 claim for additional compensation benefits for dependent children, as well as transcripts reflecting C.F.'s college attendance and a July 2003 final decree of adoption of C.F. by the Veteran. 6. The April 2013 notice letters sent to the Veteran requesting additional information with regard to the status of the claimed dependents did not indicate that any additional information was required to establish dependency benefits based on school attendance of daughter, C.F. 7. In January 2015, the Veteran submitted a request for approval of school attendance (on a VA Form 21-674) for daughter, C.F. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of the substantive appeal as to the issue of initial disability ratings for lumbar spine degenerative arthritis in excess of 10 percent for the period from November 25, 2008 to December 17, 2010, and in excess of 40 percent from December 17, 2010, are met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for additional dependency benefits based on school attendance from December 17, 2010 to October 31, 2012 for the Veteran's daughter, C.F., have been met. 38 U.S.C. §§ 1115, 5107, 5110 (2012); 38 C.F.R. §§ 3.57(a), 3.102, 3.503, 3.667 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159 (2017). As the withdrawn issue of initial disability ratings for lumbar spine degenerative arthritis in excess of 10 percent for the period from November 25, 2008 to December 17, 2010, and in excess of 40 percent from December 17, 2010 is decided as a matter of law, no discussion of the duties to notify and assist is required. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994); Mason v. Principi, 16 Vet. App. 129 (2002). Further, the Board is granting additional dependency benefits based on school attendance for the Veteran's daughter, C.F., constituting a full grant of the benefit sought on appeal with respect to this issue; therefore, no discussion of VA's duty to notify and to assist is necessary with respect to this issue. Withdrawal of Appeal for Initial Ratings for Lumbar Spine Degenerative Arthritis Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing or on record at a hearing at any time before the Board promulgates a decision. Withdrawal may be made by the veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In this case, on the record at the October 2017 Board hearing, the Veteran withdrew the appeal for initial disability ratings for lumbar spine degenerative arthritis in excess of 10 percent for the period from November 25, 2008 to December 17, 2010, and in excess of 40 percent from December 17, 2010; therefore, there remain no allegations of errors of fact or law for appellate consideration with respect to this issue. Accordingly, the Board does not have jurisdiction to review the appeal further with respect to this issue, and it will be dismissed. Additional Dependency Benefits 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. 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 (2017). The Veteran contends that he is eligible for additional dependency benefits based on full-time school (i.e., college) attendance of daughter, C.F. Specifically, in a March 2017 substantive appeal (on a VA Form 9), the Veteran contended that he responded in a timely manner to every request made by VA concerning claiming his daughter, C.F., as a dependent, and that, when he submitted the original dependency documentation in 2011 and 2013, no mention was made of needing any further information with regard to C.F.. The Veteran contended that he would not have claimed only two of his three dependent children. See also October 2017 Board hearing. After review of the evidence of record, the Board finds that the criteria for additional dependency benefits based on school attendance of the Veteran's daughter, C.F., have been met. The Veteran's service-connected disabilities have been rated at 30 percent or greater from December 17, 2010. Pursuant to a March 2013 rating decision, a 60 percent combined disability rating was established effective February 28, 2011. Pursuant to a May 2013 rating decision, a 40 percent combined disability rating was established effective December 17, 2010. A 10 percent disability rating was in effect from November 25, 2008 to December 17, 2010. As such, the threshold criteria of a minimum 30 percent disability rating for basic entitlement to additional payment for dependents have been met since December 17, 2010. 38 U.S.C. § 1115. The Veteran's daughter, C.F., was born in October 1989, turned 18 years old in October 2007, started college in August 2008, turned 23 years old in October 2012, and graduated college in December 2012. As relevant in this case, C.F. was under the age of 23 from December 17, 2010 (when basically eligibility for dependency benefits was established) until October 31, 2012. In August 2011, the Veteran submitted a VA claim (on a VA Form 21-686c, declaration of status of dependents) for additional compensation benefits for dependent children, including based on school attendance of daughter, C.F. In May 2013, following the grant of compensation benefits establishing entitlement to dependency benefits, the Veteran resubmitted the 2011 claim for additional compensation benefits for dependent children, as well as transcripts reflecting dates of college attendance by C.F. and a July 2003 final decree of adoption of C.F. by the Veteran. While the March 2017 supplemental statement of the case indicates that the Veteran failed to submit the required forms establishing C.F. as a school age child, it is unclear from the claims file when said documentation was solicited by VA. The April 2013 notice letters sent to the Veteran requesting additional information with regard to the status of the other claimed dependents did not indicate that any additional information was required to establish dependency benefits based on school attendance of daughter, C.F. Upon receipt of a request for benefits based on school attendance, VA is to send a locally generated letter to the claimant requesting completion of a VA Form 21-674. See VBA Live Manual, M21-1, Part II, Subpart iii, Chapter 6, Section B, Topic 6, Verifying a Child's School Attendance. In January 2015, the Veteran submitted a request for approval of school attendance (on a VA Form 21-674) for daughter, C.F. It is unclear from the evidence of record whether this form was submitted in response to a request from VA or spontaneously by the Veteran. It was not added to the claims file until it was resubmitted in April 2016 with a copy of a fax cover sheet reflecting that the evidence had originally been submitted in January 2015. A November 2015 letter from the RO requesting the Veteran complete and return an enclosed VA Form 21-674 with respect to daughter, C.F., is the earliest evidence of record that the VA took action on the claim for additional dependency benefits based on school attendance of C.F. It seems clear that, if VA had satisfied its affirmative duty to provide the required information, the Veteran would have immediately filed on the correct form as demonstrated by the submission of the VA Form 21-674 in January 2015. Further, the Board finds that the Veteran provided sufficient information (whether on a specified VA form or otherwise) substantiating that C.F. attended school after the age of 18 within one year of the March and May 2013 rating decisions establishing basic eligibility to dependency benefits. Specifically, the Veteran provided VA with a copy of C.F.'s transcript reflecting actual proof school attendance from August 2008 through December 2012 as well as a July 2003 final decree adoption establishing C.F. as the Veteran's child for VA purposes. Based on the above, and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for additional dependency benefits based on school attendance from December 17, 2010 to October 31, 2012 for the Veteran's daughter, C.F., have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER The appeal for initial disability ratings for lumbar spine degenerative arthritis, in excess of 10 percent for the period from November 25, 2008 to December 17, 2010, and in excess of 40 percent from December 17, 2010, having been withdrawn, is dismissed. Additional dependency benefits based on school attendance school attendance from December 17, 2010 to October 31, 2012 for the Veteran's daughter, C.F., are granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs