Citation Nr: 18141094 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 17-50 306 DATE: October 9, 2018 ORDER Entitlement to additional dependency allowance for E.L.M. is denied. (The appeal of the denial of an apportionment of the Veteran’s VA disability compensation benefits on behalf of E.L.M. will be addressed in a separate Board decision.) FINDING OF FACT E.L.M. has been a dependent on the Veteran’s award during all periods he was entitled to receive VA benefits until she graduated from college in May 2010. CONCLUSION OF LAW The criteria for additional dependency allowance for E.L.M. have not been met. 38 U.S.C. §§ 1115, 1521, 5110 (2012); 38 C.F.R. §§ 3.23, 3.31, 3.401 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION A veteran who is in receipt of disability compensation of 30 percent or more is entitled to additional compensation for each dependent. 38 U.S.C. § 1115; 38 C.F.R. § 3.4(b)(2). The effective date for additional compensation for a dependent is the latest of the following dates: (1) the date of claim; (2) the date the dependency arises; (3) the effective date of the qualifying disability rating provided evidence of dependency is received within a year of notification of such rating action; or (4) the date of commencement of the veteran’s award. 38 C.F.R. § 3.401(b). The commencement of payment for additional compensation for a dependent begins the first day of the month following the effective date. 38 C.F.R. § 3.31. Veterans who are entitled to nonservice-connected pension benefits also receive a higher rate of payment when they have dependent children. 38 U.S.C. § 1521; 38 C.F.R. § 3.23. Here, an August 2009 rating decision granted the Veteran entitlement to VA disability compensation at the 50 percent rate, effective March 10, 2009, as a result of claim under 38 U.S.C. § 1151; however, the Veteran’s award is subject to full recoupment until approximately 2035 due to a $500,000.00 FTCA settlement the Veteran entered with VA. Although the Veteran’s award was subject to full recoupment, the record reflects the Veteran was entitled to receive dependency allowance for E.L.M. from the effective date of his VA disability compensation benefits, March 10, 2009, until June 1, 2010, the first day of the month after E.L.M.’s graduation from a bachelor’s degree program in May 2010, with the dependency allowance offset against the $500,000.00 balance of the FTCA settlement. Once E.L.M. graduated, she no longer qualified as a dependent of the Veteran because she was more than 18 years of age and not enrolled in a course of instruction at an educational institution. See 38 U.S.C. § 101 (4)(A); 38 C.F.R. § 3.57. The Board also notes the Veteran received a higher payment rate due to E.L.M.’s dependency during the period he was eligible for nonservice-connected pension benefits from June 1, 2005 to February 1, 2006, when his nonservice-connected pension benefits were terminated due to excessive income. The Board recognizes the Veteran’s appeal is primarily based on a belief that E.L.M. is eligible for educational assistance that is being withheld by VA. The Board notes E.L.M. does not qualify for Dependents’ Education Assistance (DEA) benefits because the Veteran is not considered to be permanently and totally disabled due to a service-connected disability. VA has required the submission of VA Forms 21-674 (Record of School Attendance) to establish entitlement to dependency allowance for E.L.M. during periods of school enrollment after her 18th birthday up until her 23rd birthday, not for the purpose of establishing entitlement to educational assistance. The Board recognizes there is a high likelihood that the Veteran’s erroneous belief that E.L.M. is entitled to educational assistance may have stemmed from inaccurate information provided by a VA employee, but this does not give rise to entitlement to the benefit sought. See Harvey v. Brown, 6 Vet. App. 416 (1994) (holding the remedy for a VA employee providing inaccurate information regarding entitlement to educational benefits is not the award of benefits). In sum, the record establishes E.L.M. has been a dependent on the Veteran’s award during all periods he was entitled to receive VA benefits until she graduated from college in May 2010. VA cannot pay dependency allowance beyond the first day of the month after E.L.M.’s graduation because she no longer meets the definition of a child under VA regulation. See 38 U.S.C. § 101 (4)(A); 38 C.F.R. § 3.57. Thus, entitlement to additional dependency allowance for E.L.M. is not warranted, and the Veteran’s appeal must be denied. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. S. Kyle, Counsel