Citation Nr: 21025235 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-59 464 DATE: April 27, 2021 ORDER Entitlement to an award of additional compensation benefits for claimed dependent parent, S.M. Jr., is denied. FINDING OF FACT The preponderance of the evidence is against a finding that S.M. Jr. had insufficient income to provide for reasonable maintenance. CONCLUSION OF LAW The criteria for an additional award of compensation based on claimed dependent parent, S.M. Jr., have not been met. 38 U.S.C. §§ 1115, 5107; 38 C.F.R. §§ 3.4, 3.204, 3.250. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from January 1986 to January 1990 and from February 1991 to April 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 notification letter by the Department of Veterans Affairs (VA) Regional Office (RO). The claims of entitlement to service connection for great right toe, low back, tibia/fibula disabilities, and major depressive disorder will be addressed in a separate Board decision. Although the Veteran requested a hearing in his VA Form 9, Appeal to the Board, the Veteran contacted the RO by phone and withdrew his hearing request, as documented in an August 2020 Report of General Information. The RO also uploaded a copy of an August 2020 email correspondence from the Veteran, sent to his representative, expressing his desire to withdraw his hearing request. Thus, the Veteran’s hearing request is considered withdrawn. The Veteran in this case asserts that he is eligible for additional dependency benefits for S.M. Jr., his father. 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. The Board notes that the Veteran has been in receipt of a 40 percent combined disability rating throughout the period on appeal. The provisions of 38 C.F.R. § 3.250 govern whether a parent can be classified as a dependent parent. This regulation provides that conclusive dependency of a parent (other than one who is residing in a foreign country) will be held to exist where the monthly income does not exceed: (1) $400 (US dollars) for a mother or father not living together; (2) $660 (US dollars) for a mother and father, or remarried parent and spouse, living together; (3) $185 for each additional “member of the family” as defined in paragraph (b)(2). 38 C.F.R. § 3.250(a)(1). Further, where the income exceeds the monthly amounts stated in paragraph (a)(1) of 38 C.F.R. § 3.250, dependency will be determined on the facts in the individual case under the principles outlined in paragraph (b) of 38 C.F.R. § 3.250. In such cases, dependency will not be held to exist if it is reasonable that some part of the corpus of the claimant’s estate be consumed for his or her maintenance. 38 C.F.R. § 3.250(a)(2). If an appellant’s parent’s income is found to exceed the monthly amounts stated 38 C.F.R. § 3.250(a)(1), dependency be determined on the facts of the case under the principles outlined in 38 C.F.R. § 3.250(b). Dependency of a parent will be held to exist if the parent does not have an income sufficient to provide for her reasonable maintenance. “Reasonable maintenance” includes housing, food, clothing, medical care, as well as items beyond the bare necessities. “Reasonable maintenance” also includes other requirements reasonably necessary to provide those conveniences and comforts of living suitable to and consistent with the parents’ reasonable mode of life. In October 2015, the Veteran submitted VA Form 21P-509, Statement of Dependency of Parent(s). He stated that S.M. Jr.’s total monthly income is $1,106.00 from the Social Security Administration (SSA). The Veteran reported his father’s monthly expenses are as follows: $78.77 for Medicare Part B; $300.00 for rent; $104.00 for medical care; $60.00 for utilities; $150.00 for groceries; and $25.00 for clothes. Based on the information provided in Form 21P-509, the father’s total monthly expenses are $717.77, which is $388.23 less than his total monthly SSA income. The Veteran also submitted a 2014 SSA-1099 Form reflecting that the Veteran’s father received SSA income of $12,329.70, with deductions of $944.19 for Medicaid Part B and $314.20 in nontaxable payment, resulting in a net benefit of $12,959.10. The Veteran’s father’s income exceeds the monthly amounts stated 38 C.F.R. § 3.250(a)(1), therefore, dependency will be determined on the facts in the individual case under the principles outlined in 38 C.F.R. § 3.250(b). The question then becomes whether S.M. Jr., the Veteran’s father, had a dependency upon the Veteran due to insufficient income to provide for his own reasonable maintenance. However, the Veteran has not reported that he provides financial assistance to his father, nor has he provided any information or detail as to how his father depends on him for reasonable maintenance. Here, considering the information provided in VA Form 21P-509, Veteran’s father SSA monthly income covers all of his monthly expenses and leaves him with a surplus in the amount of $388.23. The Board notes that the Veteran contends in his August 2016 notice of disagreement, that $4,800.00 is not the maximum threshold requirement according to M21-1 and the issue should be developed considering the dependent’s entire financial situation. However, M21-1, Part III, Subpart iii, Chapter 5, Section J - Establishing Parental Dependency correctly indicates “conclusive dependency of a parent, other than a parent who resides in a foreign country, exists when the monthly income of the parent(s) does not exceed $400 for a mother or father living alone, or $660 for a mother and father, or remarried parent and spouse living together.” Thus, the RO correctly indicated that an annual income for a single parent cannot exceed $4,800.00 (12 months x $400.00). The Board has reviewed the facts of the case under the principles outlined in 38 C.F.R. § 3.250(b), however, as stated above, the Veteran has not provided evidence or argument that his father does not have an income sufficient to provide reasonable maintenance of himself. Rather, the evidence reflects that S.M. Jr. does, in fact, have an income sufficient to provide reasonable maintenance for himself, to include housing, food, clothing, and medical care sufficient to sustain life. Therefore, the evidence weighs against a finding that the Veteran’s father was dependent on the Veteran for reasonable maintenance, and the claim for additional compensation benefits for claimed dependent parent, S.M. Jr., is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah Campbell, 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.