Citation Nr: 18157698 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 17-01 022 DATE: December 13, 2018 ORDER Entitlement to restoration of a dependency award based upon school attendance from February 14, 2014 for dependent child, J. is granted. FINDINGS OF FACT 1. In November 2013, the Veteran was informed that dependent child J. would be removed from his award effective February 14, 2014, upon his 18th birthday. 2. In November 2013, within one year of the change in dependency status, the Veteran informed VA of J.’s enrollment in an academic institution. 3. In January 2016, VA requested that the Veteran submit a completed VA Form 21-674 in support of his claim; the form was provided by the Veteran in January and April 2016. 4. The Veteran acted in a reasonable and timely manner in alerting VA of the change in dependency status for child J. CONCLUSION OF LAW The criteria for continuous benefits based on school attendance of the Veteran’s dependent child, J., from February 4, 2014, have been met, such that the termination of benefits was improper, and benefits are restored. 38 U.S.C. §§ 1115, 5107 (2012); 38 C.F.R. §§ 3.31, 3.400, 3.667 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from August 1982 to August 1985, August 1988 to October 1993, and from August 2010 to August 2013. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2016 decision letter by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). Restoration of Benefits The Veteran is seeking restoration of benefits for dependent child, J., based on school attendance. 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, 1134, 1135 (2012); 38 C.F.R. § 3.4(b)(2) (2017). Specific rates are provided for the veteran’s spouse and children. In this regard, a child is defined as an unmarried person who is: (i) Under the age of 18 years; (ii) before the age of 18 years became permanently incapable of self-support; or (iii) 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. § 101(4)(A) (2012); 38 C.F.R. § 3.57 (a) (2017). The allowance is generally discontinued when a dependent child turns 18, or when the child turns 23 if he or she is enrolled in school. 38 C.F.R. §§ 3.503, 3.667 (2017). Compensation may be paid from a child’s 18th birthday based upon school attendance if the child was at that time pursing 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. Compensation based upon a course of instruction at an approved educational institution that is 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) (2017). Compensation may be paid until completion of education or training unless the dependent reaches the age of 23 years prior to completion. 38 C.F.R. § 3.57(a)(1) (2017). A child is considered to be in school during a vacation or other holiday period if he or she was attending an approved educational institution at the end of the preceding school term and resumes attendance either in the same or a different approved educational institution, at the beginning of the next term. If an award has been made covering a vacation period, and the child fails to commence or resume school attendance, benefits will be terminated the date of last payment or the last day of the month preceding the date of failure to pursue the course, whichever is the earlier. 38 C.F.R. § 3.667(b) (2017). Except as provided in paragraph (b) of this section, benefits may be authorized through the last day of the month in which a course was or will be completed. 38 C.F.R. § 3.667 (c) (2017). When benefits have been authorized based upon school attendance and it is shown that during a part or all of that period the child was pursuing a different course in the same approved educational institution or a course in a different approved educational institution, payments previously made will not be disturbed. 38 C.F.R. § 3.667(d) (2017). The evidence of record reflects that the Veteran filed a claim for dependency benefits (VA Form 21-686c) in March 2013. In November 2013, the Veteran was notified that the claim had been granted, but that J. would be removed from the award on February 14, 2014, upon his 18th birthday. The Veteran indicated in a subsequent November 2013 VA Form 21-686c that his dependent son was a full-time student in high school. The Veteran further noted that the dependent son planned on attending college in a full-time status that fall term. In January 2016, the Veteran was provided with VA Form 21-674 (Request for Approval of School Attendance) and informed that a completed copy was required to make a determination of the claim. The Veteran reiterated in January 2016 that his dependent son had been a full-time high school student and graduated in August 2014. He further noted that the dependent son was currently a full-time student at Vincennes University. A completed copy of the form was subsequently provided by the Veteran in January 2016 for the dependent son’s university enrollment. In February 2016, a decision letter was issued which denied the claim on the basis that the requisite form had not been completed. Thereafter, in April 2016 correspondence, the Veteran provided the information to complete a VA Form 21-674 for the dependent son’s enrollment in high school. Upon review of the above, the Board finds that the Veteran is entitled to restoration of dependent benefits for J. based on school attendance. In making this determination, the Board first considers the contents of the November 2013 notification letter, which instructed the Veteran to inform VA of any change in dependency status within one year of the change. At no time was the Veteran directed to provide a copy of VA Form 21-674 as part of said notification, nor was a copy of that form provided to the Veteran at that time. In November 2013, well within one year of the change in dependency status, the Veteran submitted a subsequent VA Form 21-686c pertaining to J.’s high school attendance and future university attendance. Thus, VA had constructive notice of the change in dependency status within the requisite time period. After noted delay, the Veteran was contacted by VA and requested to provide a copy of VA Form 21-674. Again, the requested information was provided by the Veteran within a matter of weeks. Thus, the Board finds that the Veteran operated in a reasonable and timely manner in informing VA of the change in dependency status in November 2013, and in providing the completed VA Form 21-674 upon VA’s request in January and April 2016. He further acted in good faith upon the instructions provided by VA at all stages during the pendency of this appeal, such that VA had constructive notice of the change in dependency status well within the required timeframe. Accordingly, the Board finds that the Veteran is entitled to restoration of dependent benefits based on school attendance for J. from February 14, 2014. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. A. Ong, Associate Counsel