Citation Nr: 21023282 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-53 558 DATE: April 20, 2021 ORDER Entitlement to additional dependency compensation beginning June 2015 for the Veteran's adult child, R., based on school attendance is granted. FINDINGS OF FACT 1. The Veteran notified VA of his daughter, R.’s, college attendance in September 2015, although not on a form prescribed by the Secretary. 2. VA’s non-compliance with notice requirements regarding submission of an incomplete application tolled the one-year filing deadline. 3. A completed application was received within one year of the Board’s July 2020 remand. 4. R. graduated from high school in May 2015. 5. R. continuously attended college from September 2015 to June 2019. CONCLUSION OF LAW The criteria for entitlement to additional dependency compensation beginning June 2015 for the Veteran's adult child, R., based on school attendance have been met. 38 U.S.C. §§ 1115, 5110; 38 C.F.R. §§ 3.57, 3.401, 3.503, 3.667. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1990 to July 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 administrative decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in his September 2015 Notice of Disagreement (NOD), the Veteran disagreed with the removal of dependency benefits for both his daughters (A. and R.) during school break. In the September 2017 Statement of the Case (SOC), the Agency of Original Jurisdiction did not address the issue of the removal of benefits for A. However, in September 2017, the AOJ issued a non-rating administrative decision awarding additional benefits for A. for the period from June 1, 2015 through December 17, 2015. The AOJ stated that the benefit sought was fully satisfied. The AOJ notified the Veteran of this decision in November 2017 and provided an appeal rights form. Because an SOC has not been issued on the appeal of benefits for A., the Board has no jurisdiction over the issue, except to remand the claim for the issuance of an SOC. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). However, because the benefits appear to be fully granted and because the Veteran was given an opportunity to appeal but did not, the Board finds the issue is fully resolved and is no longer on appeal. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 1. Entitlement to additional dependency compensation beginning June 2015 for the Veteran's adult child, R., based on school attendance. The Veteran contends that he is eligible for additional dependency benefits from June 2015 based on the full-time school (i.e., college) attendance of his child, R. He was previously denied the benefits because he had not submitted VA Form 21-674c, Request for Approval of School attendance, as is required for school attendance claims filed after March 24, 2015. R. turned 18 years of age in November 2014 but was attending high school through May 2015. She was removed from the Veteran’s compensation award effective June 2015. In general, any veteran whose disability is rated not less than 30 percent shall be entitled to additional compensation for his or her eligible dependents, including a child under the age of 18 years. 38 U.S.C. § 1115. That additional compensation may be extended beyond the child’s eighteenth 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 one year from the child’s eighteenth 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 1 year from that date. 38 C.F.R. § 3.667 (a)(2). The additional compensation is discontinued when the child turns 23, or when he or she is not enrolled in school any longer. 38 C.F.R. § 3.57. The effective date of an award of additional compensation for dependents based on the establishment of a 30 percent or more rating will be the latest of the following dates: (1) date of claim for dependency; (2) date the dependency arises; (3) effective date of the qualifying disability rating provided evidence of dependency is received within a year of notification of such rating action; or (4) date of commencement of the service member’s award. 38 C.F.R. § 3.401 (b). The earliest date that an additional award of compensation for a dependent school child can occur is the first day of the calendar month following the month in which the award became effective. 38 C.F.R. § 3.31. The record reflects that the Veteran first notified VA of R.’s school (college) attendance in the September 2015 notice of disagreement. He simultaneously submitted a copy of R.’s college transcript indicating that she began attending college in September 2015. In October 2017, along with his substantive appeal, the Veteran submitted a new copy of R.’s college transcript, indicating that she had been enrolled in college from September 2015 to December 2017 Under 38 U.S.C. § 5101(a), a specific claim must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See also 38 C.F.R. § 3.151(a). The Secretary has authority to prescribe the nature and extent of the proof required in order to establish a right to VA benefits. See 38 U.S.C. § 501. Regulations defining a “claim” were revised, effective March 24, 2015. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). The revision eliminated informal claims and required claims on specific forms. In July 2020, the Board remanded the claim to allow the Veteran to submit the appropriate form, VA Form 21-674c, Request for Approval of School Attendance. The Board did so because it found that the one-year filing window under 38 C.F.R. § 3.667 had been tolled by VA’s non-compliance with the mandatory notice requirements of 38 U.S.C. § 5102(b). That law provides that, where a claimant’s application for a benefit under the laws administered by the Secretary is incomplete, the Secretary shall notify the claimant and the claimant's representative, if any, of the information necessary to complete the application. 38 U.S.C. § 5102(b). In July 2020, VA sent the Veteran a letter asking him to submit VA Form 21-674. In August 2020, VA received a completed VA Form 21-674 along with R.’s college transcripts. The transcripts show R. began her course of instruction in September 2015 and graduated in June 2019 with a Bachelor of Science degree. She attended each quarter except for summer quarters. The Board, therefore, finds that the Veteran notified VA of R.’s attendance at school within one year of her graduation from high school and commencement of her college education. Although this notice is not on a form prescribed by the Secretary, the timeframe for submission was tolled by the Board due to VA’s non-compliance with notice requirements. Once the Veteran was properly notified, he submitted the requested form. R. was shown to be in school continuously from September 2015 to her graduation in June 2019. A child is considered to be in school during summer break if the child was in school during the previous term, and resumes school in the following term. 38 C.F.R. § 3.667(b). In this case, R. was in high school until May 2015, when she graduated. Because she attended college the following fall term, continuous benefits are warranted. Accordingly, additional dependent benefits are warranted for R.’s school attendance from June 2015 to until her graduation from college in June 2019. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Rocktashel, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.