Citation Nr: 0806059
Date: 02/22/08 Archive Date: 03/03/08
DOCKET NO. 05-27 670 )
On appeal from the Department
of Veterans Affairs Regional Office in Phoenix,
Entitlement to payment of additional dependency
benefits for a child over the age of 18 based upon school attendance.
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
A.G. Alderman, Associate Counsel
The veteran had active military service from January 1966 to October 1969.
case comes before the Board of Veterans' Appeals (Board) on
appeal from a September 2004 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, that denied his claim to add his son, over
the age of 23, as a dependent
based upon his school attendance at a community college.
FINDINGS OF FACT
1. The veteran was granted total
disability in June 1996, effective March 1994, for post traumatic
stress disorder; however, it was not found that the disability
was permanent in nature at that time.
2. In April 2000,
a rating decision found that the veteran had a permanent and
total service-connected disability, and was granted basic eligibility
for DEA benefits under Chapter 35, Title 38, United States Code.
veteran's son turned 23 years old in January 1995.
4. When the veteran filed for benefits in April 2004; the son was 32 years old.
CONCLUSIONS OF LAW
The criteria for payment of additional dependency benefits for a child over the age of 18 based upon school attendance have not been met. 38 U.S.C.A. § 101 (West 2002); 38 C.F.R. §§ 3.57, 3.667 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
VA law provides that the term "child" means, among other things, an unmarried person who is under the age of 18 years or who, 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.A. § 101(4); 38 C.F.R. § 3.57(a) (2007).
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 educational institution, 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).
In this case, the veteran submitted documentary
evidence demonstrating that his son was born in January 1972.
His son attained the age of 18 in January 1990, and attained
the age of 23 in January 1995; therefore at the time the veteran
filed for compensation based upon his son's schooling in
April 2004, his son could not be considered a "child"
for purposes of VA compensation as he was 32 years old.
In a statement dated September
2004, the veteran indicates that his son took college classes
in the 1990s; therefore, compensation should be considered based
on school attendance during that period.
However, even if his son took college
courses in the 1990s, it was only after an April 2000 rating
action that the RO granted basic eligibility for DEA benefits
under Chapter 35, Title 38, United States Code, effective March
2000. A rating
action dated June 1996 denied educational assistance under Chapter 35.
While a rating action in February 2004 granted basic eligibility
under Chapter 35 from March 1994, because the veteran did not
file a claim for compensation within one year of his son's
commencement of classes in the 1990's, the veteran is not
entitled to additional compensation based on his son's schooling.
The Board, as the veteran requests, can not "waive"
the age requirements.
The Court has held that in cases such as this, where the law is
dispositive, the claim should be denied because of the absence
of legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). As the veteran has not met the legal requirements for filing his claim for additional dependent compensation based on a child's school attendance, his appeal must be denied.
The Duty to Notify and Duty to Assist
As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).
In this case, VCAA notice is not required because
the issue presented involves a claim that cannot be substantiated
as a matter of law. See Sabonis v. Brown,
6 Vet. App. 426, 430 (1994) (where the law and not the evidence
is dispositive the Board should deny the claim on the ground
of the lack of legal merit or the lack of entitlement under
the law); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required
to provide notice of the information and evidence necessary
to substantiate a claim where that claim cannot be substantiated
because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit).
Entitlement to payment of additional dependency benefits for a
child over the age of 18 based upon school attendance is denied.
JOHN J. CROWLEY
Veterans Law Judge, Board of
Department of Veterans Affairs
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