Veteranclaims’s Blog

November 15, 2021

Single Judge Application; Healey v. McDonough, 33 Vet.App. 312, 320-21 (2021) (“[T]he Board is required to discuss any relevant provisions contained in the M21-1 as part of its duty to provide adequate reasons or bases, but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an M21-1 provision as a factor to support its decision.”).; the Board did not make any express finding that Mr. Douglass filed an incomplete claim. Indeed, the Board provided no discussion concerning whether Mr. Douglass filed an incomplete claim and whether the answer to that question was even dispositive in his case. Instead, the Board generally found that his claims must be denied as a matter of law,; Board did not identify which legal provisions it was relying on, nor did it explain why Mr. Douglass’s claims for dependency benefits must be denied as a matter of law. The Board also did not explain why it found that the facts in this case are not in dispute.;

Filed under: Uncategorized — veteranclaims @ 11:56 am

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-7256
JOHN W. DOUGLASS III, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
PIETSCH, Judge: John W. Douglass III appeals through counsel a June 11, 2019, Board
of Veterans’ Appeals (Board) decision that denied entitlement to additional dependency benefits
based on school attendance (a) from June 2010 to May 2015 for Mr. Douglass’s son Elijah; (b)
from June 2010 to May 2015 for his son Jordan; and (c) from March 25, 2012, to January 31, 2014,
for his daughter Marissa.1 This appeal is timely, and the Court has jurisdiction to review the
Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is
appropriate as the issue is of “relative simplicity” and “the outcome is not reasonably debatable.”
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will
vacate the portion of the Board’s June 11, 2019, decision concerning dependency benefits for Elijah
from June 2010 to April 21, 2012, for Jordan from June 2010 to April 15, 2014, and for Marissa
from March 25, 2012, to January 31, 2014, and the Court will remand the vacated matters for
readjudication consistent with this decision.
1 The Board denied dependency benefits for Elijah from April 21, 2012, to May 2015, and for Jordan from
April 15, 2014, to May 2015, because Elijah turned 23 years old on April 21, 2012, and Jordan turned 23 years old on
April 15, 2014. Mr. Douglass does not present any argument on appeal to challenge these Board findings; thus, the
issues of entitlement to dependency benefits for Elijah and Jordan for these specific periods have been abandoned.
See Pederson v. McDonald, 27 Vet.App. 276, 283 (2015) (en banc).
2
I. FACTS
Mr. Douglass served on active duty in the U.S. Army from February 1976 to August 1976.
See Record (R.) at 3085.
In a July 2014 rating decision, the VA regional office (RO) granted claims for service
connection for post-traumatic stress disorder, depression, and bipolar disorder (psychiatric
disability), hepatitis C, and cirrhosis. R. at 2005-16. The RO assigned a combined disability rating
of at least 30 %, effective June 29, 2010. Id. In August 2014, Mr. Douglass requested additional
compensation for his three dependent children who were attending school. R. at 1961. He reported
that Elijah was born on April 21, 1989, Jordan on April 15, 1991, and Marissa on March 24, 1994.
R. at 1962.
In an August 2014 “Request for Approval of School Attendance” (VA Form 21-674), Mr.
Douglass noted that Elijah was attending New York Medical College in Valhalla, New York; he
had previously attended that institution from January 2014 to July 2014; his upcoming term was
to begin on August 7, 2014; and he expected to graduate in May 2015. R. at 1963. Mr. Douglass
also reported that Eljiah had graduated from Providence Country Day school in 2007 and from
Lehigh University in 2010, and that Eljiah started New York Medical College in 2011. R. at 1982.
In another August 2014 VA Form 21-674, Mr. Douglass noted that Jordan was attending
Mass School of Pharmacy in Worcester, Massachusetts; he had previously attended that institution
from April 2014 to August 6, 2014; his upcoming term was to begin in September 2014; he
attended the spring semester in 2014; and he expected to graduate in spring 2015. R. at 1964. Mr.
Douglass added that Jordan had graduated from Providence Country Day school in 2009, attended
the University of Vermont for 1 year, and graduated from Union College in 2013. R. at 1982.
Mr. Douglass noted in another August 2014 VA Form 21-674 that Marissa was attending
Elon University in Elon, North Carolina; she had previously attended that institution from January
2014 to May 2014; her upcoming term was to begin on August 16, 2014; and she expected to
graduate in 2016. R. at 1965. Mr. Douglass also stated that Marissa had graduated from Providence
Country Day school in 2012 and attended the Stetson University for 1 year. R. at 1982.
In October 2014, the RO notified Mr. Douglass that VA had granted additional dependency
benefits for Marissa, effective from June 29, 2010, to March 24, 2012, based on the date she turned
18 years old, and effective from January 1, 2014, to June 1, 2016, based on the date she stopped
attending school. R. at 1894. The letter also stated that the information Mr. Douglass sent VA
3
about his dependents was not complete, and the RO asked Mr. Douglass to provide more
information about when his children were in school. R. at 1894-95. The letter stated: “Please
complete VA Form 674 showing Elijah was in school during June 29, 2010, the date you were
eligible for dependency allowance until his 23rd birthday.” R. at 1895. It also stated: “Please
complete VA Form 674 showing Jordan was in school during June 29, 2010, the date you were
eligible for dependency allowance until his 23rd birthday.” Id. And the letter stated:
Please complete one VA Form 674 for each school period Marissa attended after her 18th
birthday in order to continue her on your award as a continuous school child. We’ve added
her from January 2014 through her graduation in May 2016. We need 674s for the periods
after her 18th birthday until her last term of January 2014.
Id.
In January 2015, the RO granted basic eligibility to dependents’ educational assistance
from February 19, 2014. R. at 373-78, 357-65. In May 2016, Mr. Douglass sent VA a letter noting
that he never heard back from VA on his claim for his children’s education. R. at 202. He noted
that his sons have graduated and that Marissa was graduating on May 21, 2016. Id. He also
submitted copies of the VA Forms 21-674 and the statement that he previously submitted in August 2014. R. at 195-201. In September 2016, the RO notified Mr. Douglass as follows:
In order to accurately process your claim for additional benefits for your children’s
school attendance we must obtain the dates of attendance (mm/dd/yyyy) for each
child, for each school attended. There are numerous dates missing as well as the
required VA Forms 21-674 Request for Approval of School Attendance which need
to accompany your claim for additional benefits. Please fill out the attached form
for each child ensuring all periods of school attendance are accurately accounted
for and the forms are completed in their entirety. We have enclosed copies of the
forms you submitted previously for reference.
R. at 175-77.
Then, in October 2016, the RO notified Mr. Douglass as follows:
We denied dependency allowance for your son, Elijah[,] because he is over the age
of 23. You had one year from notification letter dated January 2, 2015 in order for
us to grant dependency back to September 1, 2010. . . . On September 1, 2016 , we
wrote to you and asked you to send us missing information for your school children,
requesting all dates of school attendance. Because we have not received it, we must
deny your claim.
R. at 160-63. In May 2017, Mr. Douglass filed a Notice of Disagreement (NOD) with the October
2016 decision. R. at 153-54. In an attached statement, he stated that he has been trying to claim
4
additional dependency benefits since 2014 “but my filled out 21-674 forms (3) are returned to me
with no explanation,” and he attached copies of the VA Forms 21-674 that he previously submitted
in August 2014. R. at 155-57, 151-52, 159.
In September 2017, the RO issued a Statement of the Case (SOC) denying dependency
allowance for Elijah and Jordan and denying additional dependency allowance for Marissa. R. at
108-37. Mr. Douglass perfected his appeal in October 2017 by filing a Form 9. R. at 104-05.
In the June 2019 decision on appeal, the Board denied additional dependency benefits
based on school attendance for Elijah from June 2010 to April 21, 2012, for Jordan from June 2010
to April 15, 2014, and for Marissa from March 25, 2012 to January 31, 2014. The Board explained
that Mr. Douglass had not submitted the specific dates of his children’s school attendance during
those periods, “despite repeated requests from the RO.” See R. at 5-17. The Board acknowledged
that he had submitted some information regarding their school attendance, but the Board
emphasized that Mr. Douglass had provided nonspecific dates, making the dates of each child’s
school attendance unclear. Id. The Board was silent regarding VA’s duty to assist.
Mr. Douglass argues on appeal that the Board clearly erred by failing to ensure that VA
satisfied its duty to assist him in substantiating his claims. See Appellant’s Brief (Br.) at 4-7.
Specifically, he argues that it would have been reasonable for VA to contact his children’s schools
to obtain the specific dates of school attendance, because he had provided VA with the names of
his children’s schools and the approximate dates of their school attendance. See Br. at 5-6. Mr.
Douglass also argues on appeal that because the Board was silent regarding the duty to assist, the
Board failed to provide adequate reasons or bases regarding whether VA had satisfied its duty to
assist. See Br. at 7-8.
The Secretary responds that VA had no duty to assist Mr. Douglass in his claims because
he did not file a complete application. See Secretary’s (Sec.) Br. at 2, 8-10. The Secretary asserts
that 38 U.S.C. § 5102(c)(1) prohibits the award or payment of benefits when a claimant fails to
submit a complete claim for benefits. Id. at 8 (also noting 38 U.S.C. § 5102(a)-(b)). He argues that
“the Board correctly found that Appellant’s claim was incomplete.” Id. at 10 (citing R. at 9-10).
The Secretary asserts that because Mr. Douglass “did not file completed applications, and thus,
did not have a valid claim, the duty to assist did not attach.” Id. at 9.
Alternatively, the Secretary responds that “if the Court finds a completed claim was filed
and the duty to assist did attach, affirmance is still warranted.” Id. at 10. He argues that the duty to
5
assist is not a one-way street, and because Mr. Douglass did not provide the specific dates of school
attendance as requested, the Board did not clearly err. See Id. at 13. And the Secretary responds
that the Board provided adequate reasons or bases regarding VA’s duty to assist because the Board
explained that “VA provided [Mr. Douglass] with appropriate notice as to the necessary
information and provided him with ample opportunity to provide the information” regarding how
to substantiate his claim. See Id. at 14.
II. ANALYSIS
Dependency benefits may be paid for a dependent child based on school attendance after a
dependent child’s 18th birthday, but not after the child’s 23rd birthday, if the child was pursuing a
course of instruction at a VA-approved educational institution at that time; and these benefits are
paid based on the dates of school attendance. 38 U.S.C. §§ 101(4)(A)(iii), 1115(1)(B) (2019);
38 C.F.R. §§ 3.57(a)(iii), 3.503(a), 3.667 (2019).
The Board is required to provide reasons or bases for its findings and conclusions on all
material issues of fact and law presented in the record, and those reasons or bases must be adequate
to enable an appellant to understand the precise basis for the Board’s decision as well as to facilitate
review in this Court. 38 U.S.C. § 7104(d)(1) (2019); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57
(1990).
First, the Court is not persuaded by the Secretary’s argument that Mr. Douglass did not file a “valid claim.” The Secretary cites no authority that uses this terminology. Relatedly, the Court is
not persuaded by the Secretary’s argument that the Board made a finding that Mr. Douglass had filed an “incomplete claim” and that this finding formed the basis of the Board’s denials.
Before VA’s 2015 regulatory amendments, a “claim” or “application”2 was defined as “a
formal or informal communication in writing requesting a determination of entitlement or
evidencing a belief in entitlement, to a benefit.” 38 C.F.R. § 3.1(p) (2014). The essential
requirements of a claim, whether formal or informal, were “(1) an intent to apply for benefits, (2)
an identification of the benefits sought, and (3) a communication in writing.” Brokowski v.
Shinseki, 23 Vet.App. 79, 84 (2009); see also 38 C.F.R. § 3.155(a) (2014) (providing the definition
of an informal claim); cf. 38 C.F.R. § 3.160(b) (2014) (defining “original claim” as [a]n initial
2 VA uses the term “claim” interchangeably with the term “application.”
6
formal application on a form prescribed by the Secretary”). Here, the Board made no finding that Mr. Douglass did not file a “claim” as defined by these authorities.
Instead, the Board noted certain authorities that speak to the question whether Mr. Douglass filed an “incomplete application.” R. at 7-8. A claimant must file “[a] specific claim in the form
prescribed by the Secretary . . . in order for benefits to be paid or furnished to any individual under
the laws administered by the Secretary.” 38 U.S.C. § 5101(a)(1) (2014); see 38 C.F.R. § 3.151(a)
(2014). And “[i]f 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 C.F.R § 5102(b) (2014). “Except as
otherwise provided by law, a claimant has the responsibility to present and support a claim for
benefits under laws administered by the Secretary.” 38 U.S.C. § 5107(a) (2019).
The Board noted sections 5101(a), 5102, 5107 and § 3.151(a), among other statutes and
regulations. R. at 7-8. But the Board did not make any express finding that Mr. Douglass filed an incomplete claim. Indeed, the Board provided no discussion concerning whether Mr. Douglass filed an incomplete claim and whether the answer to that question was even dispositive in his case.
Instead, the Board generally found that his claims must be denied as a matter of law,
stating for
each claim:
Congress did not enact any exceptions to the above-discussed legal provisions that
would permit a grant of the requested education benefit. As the disposition of this
claim is based on the law, and not on the facts of the case, the claim must therefore
be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet.
App. 426, 430 (1994).
R. at 10, 12, 14-15. The Board did not identify which legal provisions it was relying on, nor did it
explain why Mr. Douglass’s claims for dependency benefits must be denied as a matter of law. The
Board also did not explain why it found that the facts in this case are not in dispute.

Ultimately, the Board’s bare conclusory statement to support its denials frustrates judicial
review and renders its reasons or bases inadequate. See Simmons v. Principi, 17 Vet.App. 104, 115
(2003) (holding that “[a] bare conclusory statement, without both supporting analysis and
explanation, is neither helpful to the veteran, nor clear enough to permit effective judicial review”
(internal quotations omitted)).
Second, the Court is persuaded that the Board failed to provide adequate reasons or bases
concerning VA’s duty to assist. The Court notes that because the Board was silent regarding the
7
duty to assist, there are no such findings of fact for the Board to review, and the Court will not
make any such findings of fact in the first instance. See Hensley v. West, 212 F.3d 1255, 1263
(Fed. Cir. 2000) (stating that appellate courts are not appropriate forums for initial factfinding; the
Court may set aside findings of fact it determines to be clearly erroneous, or reverse judgments of
law based on proper fact findings, but may not make fact findings in the first instance).
VA’s duty to assist requires VA to “make reasonable efforts to assist a claimant in obtaining
evidence necessary to substantiate the claimant’s claim for a benefit under a law administered by
the Secretary.” 38 U.S.C. 5103A(a)(1) (2018). But VA “may defer providing assistance under this
section pending the submission by the claimant of essential information missing from the
claimant’s application.” 38 U.S.C. 5103A(a)(3); see 38 C.F.R. § 3.159(b)(2) (2018) (“If VA
receives an incomplete application for benefits, it will notify the claimant of the information
necessary to complete the application and will defer assistance until the claimant submits this
information.”).
VA’s duty to assist may be triggered “[u]pon receipt of a substantially complete application
for benefits . . .” 38 C.F.R. § 3.159(c). A “substantially complete application” is defined as “an
application containing the claimant’s name; his or her relationship to the veteran, if applicable;
sufficient service information for VA to verify the claimed service, if applicable; the benefit
claimed and any medical condition(s) on which it is based; [and] the claimant’s signature.”
38 C.F.R. § 3.159(a)(3). And “VA will refrain from providing assistance in obtaining evidence for
a claim if the substantially complete application for benefits indicates that there is no reasonable
possibility that any assistance VA would provide to the claimant would substantiate the claim,” or
“if the evidence obtained indicates that there is no reasonable possibility that further assistance
would substantiate the claim.” 38 C.F.R. § 3.159(d).
Here, the Board was silent regarding whether VA’s duty to assist was triggered. The Board
did not discuss whether the specific dates (month, day, year) of Elijah’s, Jordan’s, and Marissa’s
school attendance constituted “essential information” that Mr. Douglass was required to provide,
such that it was proper for VA to defer assistance under section 5103A because Mr. Douglass did
not provide those specific dates. Relatedly, the Board did not discuss whether Mr. Douglass
submitted a “substantially complete application” sufficient to trigger the duty to assist, in light of
how he submitted VA Forms 21-674 in August 2014 that contained his name, his signature, and
the benefit he was claiming for each child. In other words, the Board did not explain whether Mr.
8
Douglass was required to provide the specific dates of school attendance to substantiate his claims
for dependency benefits before VA had any duty to assist him in obtaining the evidence required
to substantiate his claims.
For the above reasons, the Court will remand the matters concerning dependency benefits
for Elijah from June 2010 to April 21, 2012; for Jordan from June 2010 to April 15, 2014; and
Marissa from March 25, 2012, to January 31, 2014, for the Board to provide adequate reasons or
bases and address whether the evidence, including Mr. Douglass’s August 2014 submissions, is
sufficient to trigger the duty to assist. See 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 56-47;
Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand is appropriate “where the Board has
incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its
determinations, or where the record is otherwise inadequate”).
Also, if the Board finds on remand that the duty to assist has been triggered, then the Board
should address whether VA satisfied its duty to assist. See generally Quirin v. Shinseki,
22 Vet.App. 390, 395-96 (2009) (after the Court determines that remand is necessary, the Court
may address additional arguments in order to provide guidance to the lower tribunal). The Board
did not discuss whether it would have been a reasonable effort for the RO to contact the schools
that Mr. Douglass identified in order to assist him in obtaining evidence of the specific dates of his
children’s school attendance. The Court notes that the M21-1 Manual instructs the RO as follows:
If entitlement to additional benefits for a schoolchild begins on the date a given
school session begins, and the date the school session began is not of record,
attempt to obtain the date from the claimant by
– contacting the school, or
– accessing the school calendar that most schools post on their website.
See M21-1, Part III, Subpart iii, Chapter 6, Section B, Topic 1, Block c (Apr. 11, 2018); see also
M21-1, Part VII, Subpart ii, Chapter 1, Section A, Topic 2, Block b (Nov. 25, 2019) (stating the
same).
Thus, if the Board finds on remand that the duty to assist has been triggered, then the Board
should discuss whether the duty to assist was satisfied, to include a discussion of the above M21-
1 Manual provision. See Healey v. McDonough, 33 Vet.App. 312, 320-21 (2021) (“[T]he Board is required to discuss any relevant provisions contained in the M21-1 as part of its duty to provide adequate reasons or bases, but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an M21-1 provision as a factor to support its decision.”).
9
The Court reminds the Board that Congress created a uniquely paternalistic nonadversarial benefits
system in which VA is required to “fully and sympathetically develop the veteran’s claim to its
optimum before deciding it on the merits.” See Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir.
1998). “The VA disability compensation system is not meant to be a trap for the unwary, or a
stratagem to deny compensation to a veteran who has a valid claim . . . .” Comer v. Peake, 552
F.3d 1362, 1369 (Fed. Cir. 2009) (internal quotations omitted). Rather, VA “has the affirmative
duty to assist claimants . . . in developing claims they may have” and “the need for such assistance
is particularly acute where . . . a veteran is afflicted with a significant psychological disability at
the time he files his [pleadings].” Id. (internal quotations omitted).
On remand, Mr. Douglass is free to submit additional evidence and argument in accordance
with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board
must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529,
534 (2002). The Court reminds the Board that “[a] remand is meant to entail a critical examination
of the justification for [the Board’s] decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991),
and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112.
III. CONCLUSION
After consideration of the parties’ briefs and a review of the record, the portion of the
Board’s June 11, 2019, decision concerning dependency benefits for Elijah from June 2010 to
April 21, 2012, for Jordan from June 2010 to April 15, 2014, and for Marissa from March 25, 2012,
to January 31, 2014, is VACATED, and the vacated matters are REMANDED for readjudication
consistent with this decision.
DATED: September 30, 2021
Copies to:
Christopher A. Porco, Esq.
VA General Counsel (027)

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