Citation Nr: 19194574 Decision Date: 12/17/19 Archive Date: 12/17/19 DOCKET NO. 17-18 092 DATE: December 17, 2019 ORDER For the period prior to March [REDACTED], 1981, recognition of the Veteran’s son, B.G.N., as his dependent for Department of Veterans Affairs (VA) purposes is granted. For the period from March 1981 to May 1984, additional dependency benefits based on school attendance for the Veteran’s son, B.G.N., are granted. FINDINGS OF FACT 1. In an April 1963 initial claim for benefits, the Veteran filed a claim for recognition of B.G.N. as his dependent child for VA purposes. 2. The Veteran’s child, B.G.N., turned 18 years old in March 1981. 3. In March 2019, within one year of VA’s request for additional information, the Veteran submitted a completed VA Form 21-674, first informing VA of B.G.N.’s social security number and school attendance from March 1981 to May 1984. CONCLUSIONS OF LAW 1. For the period prior to March [REDACTED], 1981, the criteria for the addition of the Veteran’s child, B.G.N., as his dependent to his award of VA disability compensation have been met. 38 U.S.C. §§ 101(4), 1115 (2012); 38 C.F.R. § 3.57, 3.204 (2018). 2. The criteria for additional dependency benefits based on school attendance for the Veteran’s child, B.G.N., for the period from March 1981 to May 1984 have been met. 38 U.S.C. §§ 1115, 5107, 5110 (2012); 38 C.F.R. §§ 3.57(a), 3.503, 3.667 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served in the Illinois National Guard from November 1956 to March 1963, with periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a November 2018 decision, the Board remanded the issue on appeal for additional development. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to recognition of B.G.N. as the Veteran’s dependent child for VA purposes. In 1965, a minimum disability rating of 50 percent was required for entitlement to additional compensation for dependents. 38 C.F.R. § 3.4(b)(2) (1977). However, effective October 1, 1978, veterans who have service-connected disabilities rated as 30 percent disabling and higher may be entitled to additional compensation for dependents. Veterans’ Disability Compensation and Survivors’ Benefits Act of 1978, Public Law 95-479 (codified as amended at 38 U.S.C. § 1115); 38 C.F.R. § 3.4(b)(2) (2017). Accordingly, there are essentially two sets of criteria, the earlier criteria and the current criteria, for the minimum disability rating required for entitlement to additional compensation for dependents. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise, and thus may not apply the current rating criteria prior to its October 1, 1978 effective date. See VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308 (1991) to the extent it conflicts with the precedents of the United States Super Court and the Federal Circuit). Accordingly, the Veteran has been in receipt of the minimum rating for additional compensation for dependents since October 1, 1978. For VA purposes, a dependent “child” is defined as the Veteran’s legitimate child, an unmarried person who is under the age of 18 years, or a stepchild who acquired that status before the age or 18 years and who is a member of the Veteran’s household; “stepchild” may be legitimate or illegitimate of the Veteran’s spouse. See 38 U.S.C. § 101 (4)(A)(iii); 38 C.F.R. § 3.57(a), (b). VA will accept, for purposes of determining entitlement to benefits under laws administered by VA, the statement of a claimant as proof of birth of a child, provided that the statement contains: the date (month and year) and place of the event; the full name and relationship of the other person to the claimant; and the social security number of the other person. 38 U.S.C. § 5124; 38 C.F.R. § 3.204. Pension or compensation may be paid from a child's 18th birthday based on 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). Pension or compensation based upon a course of instruction at an approved educational institution which was begun after a child's eighteenth 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(b). If a claimant's application for a benefit under the laws administered by VA is incomplete, VA shall notify the claimant and the claimant's representative, if any, of the information necessary to complete the application. 38 U.S.C. § 5102(b). If information that a claimant and the claimant's representative, if any, are notified under subsection (b) is necessary to complete an application is not received by VA within one year from the date notice is sent, no benefit may be paid or furnished by reason of the claimant's application. 38 U.S.C. § 5102(c). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by VA. 38 U.S.C. § 5107(a). By way of background, the Veteran’s April 1963 initial claim for service connection included a claim for recognition of his son, B.G.N., as his dependent for VA purposes. The Veteran indicated that B.G.N. was born in April 1963 in Oak Park, Illinois. However, this claim for dependency benefits was not recognized by VA until the November 2018 Board decision, which remanded the issue for further development, including to obtain B.G.N.’s social security number and a completed VA Form 21-674, Request for Approval of School Attendance. In a March 2019 letter, pursuant to the November 2018 Board remand directives, the RO asked the Veteran to complete and return VA Form 21-674. In March 2019, the Veteran submitted a completed VA Form 21-674, listing B.G.N.’s social security number and that he attended school full-time and continuously from March 1981 to May 1984. In May 2019, the Veteran submitted a copy of B.G.N.’s birth certificate, indicating that he was born in March 1963. As relevant in this case, B.G.N. was under the age of 18 until March 1981 and under the age of 23 until March 1986. After careful review of the record, the Board finds that recognition of B.G.N. as the Veteran’s dependent child for VA purposes is warranted for the period prior to March [REDACTED], 1981, the date of B.G.N.’s 18th birthday. Clearly, the Veteran submitted a claim for recognition of B.G.N. as his dependent for VA purposes in April 1963. Unfortunately, this claim was not recognized by VA until November 2018, when the Board remanded the claim for additional development. In May 2019, within one year of VA’s letter notifying the Veteran that his April 1963 application was incomplete, the Veteran submitted the necessary information to complete his application for recognition of B.G.N. as his dependent child for VA purposes. The Veteran also contends that he is eligible for additional dependency benefits from March 1981 to May 1984 based on the full-time school attendance of B.G.N. As relevant in this case, B.G.N. turned 23 years of age in March 1986, subsequent to his completion of school. As such, he was under the age of 23 for the entire time he was in school. Thus, the only remaining question is whether additional dependency benefits are warranted for B.G.N. from March 1981 to May 1984 based on school attendance. (Continued on the next page)   The Board has awarded herein recognition of B.G.N. as the Veteran's dependent child for the period prior to March [REDACTED], 1981, the date of his eighteenth birthday. This is the first recognition of B.G.N. as the Veteran’s dependent child for VA purposes. While the Veteran first notified VA of B.G.N.’s school attendance in March 2019, many years after B.G.N.’s 18th birthday and commencement of the course of study, the Veteran has had a pending dependency claim for recognition of B.G.N. since April 1963 and submitted a completed VA Form 21-674 within one year of VA’s March 2019 letter requesting such information. As such, the Board finds that the criteria for recognition of B.G.N. as a dependent child based on school attendance for the period from March 1981 to May 1984, have been met. Resolving all reasonable doubt in the Veteran's favor, the Board finds that recognition of B.G.N. as the Veteran’s dependent child for VA purposes is warranted, including for the period prior to his 18th birthday in March 1981 and as a school child from March 1981 to May 1984. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Thomas, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.