Citation Nr: 1812349 Decision Date: 02/28/18 Archive Date: 03/08/18 DOCKET NO. 14-16 887 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an effective date earlier than July 1, 2008, for the award of additional compensation for a dependent child, A.A.W., on the basis that he was pursuing a course of instruction at an educational institution approved by VA. 2. Entitlement to an effective date earlier than August 1, 2010, for the award of additional compensation for a dependent child, A.D.W., on the basis that she was pursuing a course of instruction at an educational institution approved by VA. 3. Entitlement to an effective date earlier than June 1, 2012, for the award of additional compensation for a dependent child, A.M.W., on the basis that he was pursuing a course of instruction at an educational institution approved by VA. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Timbers, Associate Counsel INTRODUCTION The Veteran served as a member of the United States Army, with active duty service from October 1979 through March 1983, from February 1986 through June 1986, and from August 1988 through October 1988. The Veteran has additional periods of service with the Army Reserves. This appeal comes to the Board of Veterans' Appeals ("Board") from a January 2013 notice letter issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Chicago, Illinois (hereinafter Agency of Original Jurisdiction ("AOJ")). This January 2013 notice letter informed the Veteran about changes to her dependency status. Thereafter, the Veteran filed a notice of disagreement in March 2013, appealing the effective dates assigned for her dependents. This appeal was processed using Virtual VA and the Veterans Benefits Management System ("VBMS"). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran's son A.A.W. was born in June 1990, turned 18 in June [REDACTED], 2008, and turned 23 on June [REDACTED], 2013. 2. In August 2013, the Veteran was notified that A.A.W, who had previously been removed as a dependent, was added as a minor child from January 1, 2003 through June [REDACTED], 2008. The Veteran was further advised that the award of additional compensation for A.A.W., on the basis that he was pursuing a course of instruction at an educational institution approved by VA, were granted effective July 1, 2008. 3. The Veteran's daughter A.D.W. was in born July 1992, turned 18 in July 2010, and turned 23 in July 2015. 4. In August 2013, the Veteran was notified that A.D.W, who had previously been removed as a dependent, was added as a minor child from January 1, 2003 through July 27, 2010. The Veteran was further advised that the award of additional compensation for A.A.W., on the basis that he was pursuing a course of instruction at an educational institution approved by VA, were granted effective August 1, 2010. 5. The Veteran's son A.M.W. was born in May 1994, and turned 18 in May 2012. 6. In August 2013, the Veteran was notified that A.A.W, who had previously been removed as a dependent, was added as a minor child from January 1, 2003 through May 17, 2012. The Veteran was further advised that the award of additional compensation for A.A.W., on the basis that he was pursuing a course of instruction at an educational institution approved by VA, were granted effective June 1, 2012. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than July 1, 2008, for the award of additional compensation for a dependent child, A.A.W., on the basis that he was pursuing a course of instruction at an educational institution approved by VA, have not been met. 38 U.S.C. §§ 1115, 5110 (West 2012); 38 C.F.R. §§ 3.4, 3.3.31, 3.57, 3.109, 3.102, 3.155, 3.159, 3.667 (2017). 2. The criteria for an effective date earlier than August 1, 2010, for the award of additional compensation for a dependent child, A.D.W., on the basis that she was pursuing a course of instruction at an educational institution approved by VA, have not been met. 38 U.S.C. §§ 1115, 5110 (West 2012); 38 C.F.R. §§ 3.4, 3.3.31, 3.57, 3.109, 3.102, 3.155, 3.159, 3.667 (2017). 3. The criteria for an effective date earlier than June 1, 2012, for the award of additional compensation for a dependent child, A.M.W., on the basis that he was pursuing a course of instruction at an educational institution approved by VA, have not been met. 38 U.S.C. §§ 1115, 5110 (West 2012); 38 C.F.R. §§ 3.4, 3.3.31, 3.57, 3.109, 3.102, 3.155, 3.159, 3.667 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). However, the notice and assistance requirements do not apply to claims that turn on statutory interpretation. Smith v. Gober, 14 Vet. App. 227, 231-232 (2000). When it is clear that there is no additional evidentiary development to be accomplished, there is no point in remanding the case. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). In this regard, the earlier effective date issues in this case involve the application of law to certain facts, such as the effective date for a combined rating of at least 30 percent and the date that the AOJ received information needed to award additional compensation for the Veteran's dependent children. These facts are already established by the evidence now of record and are not in dispute. Collecting additional evidence would not be productive or helpful to the Veteran's appeal. Thus, because the law as mandated by statute, and not further development of evidence, is dispositive of this appeal, VA's notice and assistance requirements are not applicable. Mason v. Principi, 16 Vet. App. 129 (2002); see also Sabonis v. Brown, 6 Vet. App. 426, 429- 430 (1994). Governing Regulations Concerning the Award of Additional Dependency Benefits Any Veteran entitled to disability compensation whose disability is rated not less than 30 percent, shall be entitled to additional compensation for a dependent child. See 38 U.S.C. 1115; 38 C.F.R. § 3.4 (b)(2). The term "child" means a person who is unmarried and-(i) who is under the age of eighteen years; (ii) who, before attaining the age of eighteen years, became permanently incapable of self-support; or (iii) who, after attaining the age of eighteen years and until completion of education or training (but not after attaining the age of twenty-three years), is pursuing a course of instruction at an approved educational institution. See 38 U.S.C. § 101 (4)(A); 38 C.F.R. § 3.57 (a). Additional pension or 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 school and a claim for such benefits is filed within one year from the child's 18th birthday. 38 C.F.R. § 3.667 (a)(1). Pension or 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 one year from that date. 38 C.F.R. § 3.667(a)(2). Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. 5110; 38 C.F.R. § 3.400. i. Benefits for dependent A.A.W: The Veteran is seeking an award of entitlement to an earlier effective date, with retroactive payments, for VA recognition of her son, A.A.W. In this case, the evidence establishes that A.A.W. was born in June 1990, and was added as a dependent minor child effective January 1, 2003. See July 2009 VA 21-686; June 2009 Rating Decision (establishing a combined disability evaluation of 30 percent effective October 29, 2003); July 2013 Rating Decision (granting earlier effective date of December 30, 2002, for combined disability evaluation of 40 percent). Dependency was established on the first day of the month following the Veteran's award of entitlement to a 40 percent disability evaluation. See 38 U.S.C. 1115; 38 C.F.R. § 3.4 (b)(2), 3.31. In a July 13, 2009 correspondence notice, the Veteran was alerted that she had been awarded a combined total disability evaluation of 30 percent, and was entitled to dependency benefits. In response, the Veteran submitted a VA 21-686c form, wherein she claimed her son, A.A.W., as a dependent child. The Veteran reported that A.A.W. was reenrolled as a college student, and was expected to graduate in May 2012. Thereafter, in a September 16, 2009 letter, the AOJ notified the Veteran that her compensation benefits had been updated to reflect the addition of her dependents, including A.A.W. Unfortunately, the September 16, 2009 correspondence incorrectly reported that A.A.W. would be removed as a dependent, effective June [REDACTED], 2008, the date of his 18th birthday. To correct this error, the Veteran submitted another VA 21-686 from, reporting that A.A.W. had been enrolled in college since September 8, 2009, and was expected to graduate in May 2012. The AOJ issued a corrective notice letter, dated April 16, 2010, which amended the status of A.A.W. to a dependent schoolchild, effective October 1, 2009. This notice alerted the Veteran that she had one year to appeal the determination. However, the Veteran did not submit any notice or correspondence expressing an intent to appeal this dependency determination. In January 2013, the Veteran filed a VA 21-674, report of school attendance, for A.A.W. At this time the Veteran reports that A.A.W. is 22 years old, and has graduated college. Following graduation, the Veteran states that A.A.W. immediately enrolled in a post-graduate Masters of Business Administration program with an anticipated graduation date of June 1, 2014. This anticipated graduation date is past the date on which the Veteran's son, A.A.W., would turn 23 years old. As noted above, the Veteran was awarded entitlement to an earlier effective date for dependency benefits. See July 2013 Rating Decision. Specifically, the Veteran had been granted a combined disability evaluation of 40 percent, effective December 30, 2002. This grant of an earlier effective date meant the Veteran was entitled to retroactive dependency benefits, based off the December 30, 2002 date of entitlement. Given the updated report of schooling for A.A.W., and the July 2013 Rating Decision, the AOJ issued a notification letter on August 1, 2013 which advised the Veteran of the updated dependency status of A.A.W. Specifically, the AOJ reported that A.A.W. was added as a dependent minor child on January 1, 2003, the first day of the month following the Veteran's award of entitlement to a 40 percent disability evaluation. See 38 U.S.C. 1115; 38 C.F.R. § 3.4 (b)(2). Thereafter, A.A.W. was dropped on his 18th birthday, only to be added as a school aged dependent, effective June [REDACTED], 2008. The AOJ advised the Veteran that the increased school child rate would be reflective in the July 1, 2008 payment of benefits. As to the effective date of entitlement to dependency benefits, as a minor child, the Board observes that January 1, 2003 is the earliest date assignable under VA regulations. See 38 C.F.R. § 3.31 (the earliest that the additional award of compensation for a dependent child can occur is the first day of the month following the effective date). As such, an earlier effective date cannot be assigned under these circumstances. Regarding the effective date for additional benefits for A.A.W, on the basis he was pursuing a course of instruction at an educational institution approved by VA, the Board finds the earliest date of entitlement is July 1, 2008. At this juncture, the Board notes that the effective date of July 1, 2008, is an earlier award that the Veteran was previously granted. As noted above, following the Veteran initial award of entitlement to dependency benefits, her son A.A.W. was considered as a dependent schoolchild, effective October 1, 2009. See April 2010 Notification Letter. Following the July 2013 rating decision, the AOJ issued an amended dependency award, here establishing A.A.W. as a dependent schoolchild, effective July 1, 2008. Moreover, the Board observes that July 1, 2008 is the earliest effective date for the award of additional school aged dependency benefits, as it is the first day of the calendar month following the month in which the award became effective (i.e. the date upon which A.A.W. turned 18 years old). See 38 C.F.R. §§ 3.31, 3.667(a)(1). As such, an earlier effective date cannot be assigned under these circumstances. Based on all of the evidence in this case, the Board finds that there is no dispute as to any fact pertinent to resolution of this appeal, and the appeal must be denied based on a lack of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ii. Benefits for dependent A.D.W: The Veteran is seeking an award of entitlement to an earlier effective date, with retroactive payments, for VA recognition of her daughter, A.D.W. In this case, the evidence establishes that A.D.W. was born in July 1992, and was added as a dependent minor child effective January 1, 2003. See July 2009 VA 21-686; June 2009 Rating Decision (establishing a combined disability evaluation of 30 percent effective October 29, 2003); July 2013 Rating Decision (granting earlier effective date of December 30, 2002, for combined disability evaluation of 40 percent). Dependency was established on the first day of the month following the Veteran's award of entitlement to a 40 percent disability evaluation. See 38 U.S.C. 1115; 38 C.F.R. § 3.4 (b)(2), 3.31. As an initial matter, the Board finds that January 1, 2003 is the earliest effective date for entitlement to dependency benefits, as a minor child, for A.D.W. See 38 C.F.R. § 3.31 (the earliest that the additional award of compensation for a dependent child can occur is the first day of the month following the effective date). As such, an earlier effective date cannot be assigned under these circumstances. Regarding the Veteran's claim for an earlier effective date for the award of additional compensation for a dependent child, A.W.W., on the basis that she was pursuing a course of instruction at an educational institution approved by VA, the Board finds the Veteran's claim must be denied. In a February 22, 2013 notification letter, the AOJ advised the Veteran that her daughter, A.D.W., would be removed as a dependent child with an effective date in July 2010 on her 18th birthday. In a timely response, the Veteran submitted a VA 21-674, Report of School Attendance, indicating that A.D.W., had remained in school since the time of her 18th birthday. See March 2013 VA 21-674. The Veteran additionally indicated that A.D.W. was expected to graduate from college in May 2015. Thereafter, the AOJ issued a notification letter, dated August 1, 2013, which advised the Veteran of the updated dependency status of A.D.W. Specifically, the AOJ reported that A.D.W. was added back as a dependent child, effective in July 2010, the date she had been previously removed due to her 18th birthday. Additionally, the AOJ reported that additional dependency benefits would be paid, based on school attendance of A.D.W., effective August 1, 2010. The AOJ stated that these benefits would be continued until July 1, 2014, the date upon which the Veteran indicated A.D.W. would stop attending school. Applying these facts to the law, the correct effective date for the award of additional benefits, based upon school attendance, was August 1, 2010, as it is the first day of the calendar month following the month in which the award became effective (i.e. the date upon which A.D.W. turned 18 years old). See 38 C.F.R. §§ 3.31, 3.667(a)(1). As such, an earlier effective date cannot be assigned under these circumstances. Moreover, the Board observes that the Veteran continued to receive additional benefits, based upon school attendance of A.D.W., until July 2015, on the date of her 23 birthday. See October 2014 Correspondence from Veteran, wherein she reports A.D.W. will graduate in December 2015, after her 23rd birthday. As such, the termination of payment for additional benefits was appropriate as of July 27, 2015. See 38 U.S.C. § 101 (4)(A); 38 C.F.R. § 3.57 (a). Based on all of the evidence in this case, the Board finds that there is no dispute as to any fact pertinent to resolution of this appeal, and the appeal must be denied based on a lack of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). iii. Benefits for dependent A.M.W: The Veteran is seeking an award of entitlement to an earlier effective date, with retroactive payments, for VA recognition of her son, A.M.W. In this case, the evidence establishes that A.M.W. was born in May 1994, and was added as a dependent minor child effective January 1, 2003. See July 2009 VA 21-686; June 2009 Rating Decision (establishing a combined disability evaluation of 30 percent effective October 29, 2003); July 2013 Rating Decision (granting earlier effective date of December 30, 2002, for combined disability evaluation of 40 percent). Dependency was established on the first day of the month following the Veteran's award of entitlement to a 40 percent disability evaluation. See 38 U.S.C. 1115; 38 C.F.R. § 3.4 (b)(2). As an initial matter, the Board finds that January 1, 2003 is the earliest effective date for entitlement to dependency benefits, as a minor child, for A.M.W. See 38 C.F.R. § 3.31 (the earliest that the additional award of compensation for a dependent child can occur is the first day of the month following the effective date). As such, an earlier effective date cannot be assigned under these circumstances. Regarding the Veteran's claim for an earlier effective date for the award of additional compensation for a dependent child, A.M.W., on the basis that he was pursuing a course of instruction at an educational institution approved by VA, the Board finds the Veteran's claim must be denied. In a February 22, 2013 notification letter, the AOJ advised the Veteran that her son, A.M.W., would be removed as a dependent child with an effective date in May 2012, on his 18th birthday. In a timely response, the Veteran submitted a VA 21-674, Report of School Attendance, indicating that A.M.W., had remained in school since the time of his 18th birthday. See March 2013 VA 21-674. The Veteran additionally indicated that A.M.W. was expected to graduate from college in May 2016. Thereafter, the AOJ issued a notification letter, dated August 1, 2013, which advised the Veteran of the updated dependency status of A.M.W. Specifically, the AOJ reported that A.M.W. was added back as a dependent child, effective May 2012, on the date he had been previously removed due to his 18th birthday. Additionally, the AOJ reported that additional dependency benefits would be paid, based on school attendance of A.M.W., effective June 1, 2012. The AOJ stated that these benefits would be continued until June 1, 2014. The Board observes that June 1, 2014 was based upon the Veteran's initial reported graduation date for her son, A.M.W. See January 22, 2013 VA 21-674. Applying these facts to the law, the correct effective date for the award of additional benefits, based upon school attendance, was June 1, 2012, as it is the first day of the calendar month following the month in which the award became effective (i.e. the date upon which A.M.W. turned 18 years old). See 38 C.F.R. §§ 3.31, 3.667(a)(1). As such, an earlier effective date cannot be assigned under these circumstances. Based on all of the evidence in this case, the Board finds that there is no dispute as to any fact pertinent to resolution of this appeal, and the appeal must be denied based on a lack of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to an effective date earlier than July 1, 2008, for the award of additional compensation for a dependent child, A.A.W., on the basis that he was pursuing a course of instruction at an educational institution approved by VA, is denied. Entitlement to an effective date earlier than August 1, 2010, for the award of additional compensation for a dependent child, A.D.W., on the basis that she was pursuing a course of instruction at an educational institution approved by VA, is denied. Entitlement to an effective date earlier than June 1, 2012, for the award of additional compensation for a dependent child, A.M.W., on the basis that he was pursuing a course of instruction at an educational institution approved by VA, is denied. ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs