Citation Nr: 18155298 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-35 798 DATE: December 4, 2018 ORDER Entitlement to an earlier effective date for the award of dependent child benefits for the Veteran’s daughter, F.M., is denied. FINDING OF FACT The Veteran has been paid dependency benefits for his daughter, F.M., from the earliest effective date possible under VA regulations. CONCLUSION OF LAW The criteria for an earlier effective date for the award of dependent child benefits for the Veteran’s daughter, F.M., have not been met. 38 U.S.C. §§ 1115, 3562; 38 C.F.R. §§ 3.401, 3.667, 3.707, 21.3023.  REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from August 1974 to December 1977. In his July 2016 VA Form 9, substantive appeal, the Veteran stated his appeal for dependent child benefits was not for his daughter, F.M., but instead, was for his other daughter, S.M. Specifically, he argued that when S.M. turned age 18, his compensation should have increased due to her age and enrollment in school. Therefore, he was entitled to retroactive benefits on this basis. Because this newly raised contention has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not currently have jurisdiction over the issue. It is instead referred to the AOJ for any appropriate action. Entitlement to an earlier effective date for the award of dependent child benefits for the Veteran’s daughter, F.M. 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 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). Furthermore, the award of additional disability compensation for a dependent is effective from the latest of the following dates: (1) Date of claim. This term means the following, listed in their order of applicability: (i) Date of veteran’s marriage, or birth of his or her child, or adoption of a child, if the evidence of the event is received within one year of the event; otherwise, (ii) Date notice is received of the dependent’s existence, if evidence is received within one year of the VA request. (2) Date dependency arises. (3) Effective date of the qualifying disability rating provided evidence of dependency is received within one year of notification of such rating action. (4) Date of commencement of veteran’s award. 38 U.S.C. § 5110; 38 C.F.R. § 3.401 (b). By way of history, the Veteran was notified in an August 2010 decisional letter that although VA had previously sent him a letter in April 2010 proposing to remove S.M. as his dependent child, effective July 1, 2010, based on the additional information he submitted after that proposal letter, S.M. was being continued as a school-aged dependent, effective September 1, 2009, to June 1, 2011, the date she was expected to graduate from school. In that same letter, it was noted that the Veteran’s other daughter, F.M., had been removed from his award, effective June 1, 2010, as she had graduated from school. In response to the August 2010 decisional letter, that same month, the Veteran submitted a VA Form 21-674, Request for Approval of School Attendance, for F.M., and reported that she was attending college and was not expected to graduate until May 2014. In an October 2010 decisional letter, the Veteran was notified that based upon his August 2010 VA Form 21-674, dependent child benefits for F.M. were being continued as a school-aged dependent, effective June 1, 2010, to June 1, 2014, the date she was expected to graduate from school. The Veteran filed a notice of disagreement (NOD) with this decision. In the Veteran’s December 2010 NOD, he stated that he “claimed and showed sufficient documentation in 2004 to include [his] youngest daughter [F.M.] in the decision to grant [his] benefits as awarded on 5/28/2004.” The Veteran stated additionally that although VA had “finally recognized her in [their] latest communication,” they did not pay him retroactively to the 2004 decision. He requested a “complete audit on all potential dependency back pay.” A review of the record shows that in May 2004, the Veteran was awarded an increased rating of 30 percent for his then only service-connected disability, bilateral pes planus with calluses and hammertoes, effective from February 23, 2004. The payment state date of that increased evaluation was noted to be March 1, 2004. In the notification letter, the Veteran was advised that he was being paid as a single Veteran with no dependents. He was also advised that the information he had submitted regarding his dependents was not complete, and that he therefore needed to provide additional information. The Veteran responded with the requested information in June 2004. Specifically, he identified himself as a married Veteran with two children, S.M. and F.M. See June 2001 VA Form 21-686c, Declaration of Status of Dependents. Based on this information, the Veteran was notified in June 2004 that his disability compensation award had been amended to include additional benefits for his “spouse and children.” This award for the additional dependency benefits was made effective March 1, 2004. See June 2004 Notification Letter. After reviewing the evidence of record, the Board finds the Veteran has been properly compensated for his daughter, F.M., as a dependent starting from March 1, 2004. Furthermore, this is the earliest effective date possible based upon the effective date of the Veteran’s qualifying disability rating. Because the Veteran has been paid the correct amount for his dependent daughter, F.M., from the earliest effective date allowable, his appeal for retroactive benefits is denied. As noted at the outset, the Veteran has since asserted that his appeal should have been for the dependent child benefits for his daughter, S.M., and not F.M., because he believes he was not paid dependency benefits at the proper rate for S.M. once she turned age 18 and was enrolled in school. See July 2016 VA Form 9. However, as was also outlined in the discussion above, that was not the basis for the Veteran’s December 2010 notice of disagreement. Therefore, this claim has not yet been addressed by the AOJ and is not at issue herein. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Churchwell, Counsel