Citation Nr: 19129771 Decision Date: 04/16/19 Archive Date: 04/16/19 DOCKET NO. 18-02 616 DATE: April 16, 2019 ORDER Entitlement to an effective date earlier than September 1, 2015, for the award of additional compensation for a dependent child, B.M., on the basis that he was pursuing a course of instruction at an educational institution approved by VA is denied. Entitlement to an effective date of September 1, 2015, but no earlier, for the award of additional compensation for a dependent child, N.M., on the basis that he was pursuing a course of instruction at an educational institution approved by VA is granted. FINDINGS OF FACT 1. The Veteran’s son, B.M., turned 18 in May 2011; the Veteran did not file a claim for payment of additional benefits for a dependent on the basis that he was pursuing a course of instruction at an educational institution approved by VA until June 2016, more than one year after his 18th birthday. The official beginning date of regular term or course began August 27, 2015. 2. The Veteran’s son, N.M., turned 18 in March 2013; the Veteran did not file a claim for payment of additional benefits for a dependent on the basis that he was pursuing a course of instruction at an educational institution approved by VA until June 2016, more than one year after his 18th birthday. The official beginning date of regular term or course began August 27, 2013; and it appears that he began his junior year on August 27, 2015. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than September 1, 2015, for the award of additional benefits for B.M. as a dependent on the basis that he was pursuing a course of instruction at an educational institution approved by VA, have not been met. 38 U.S.C.A. §§ 1115, 5110; 38 C.F.R. §§ 3.4, 3.31, 3.57, 3.109, 3.667. 2. The criteria for an effective date of September 1, 2015, but no earlier, for the award of additional benefits for N.M. as a dependent on the basis that he was pursuing a course of instruction at an educational institution approved by VA, have been met. 38 U.S.C.A. §§ 1115, 5110; 38 C.F.R. §§ 3.4, 3.31, 3.57, 3.109, 3.667. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1965 to April 1968.   Entitlement to earlier effective dates for the awards of additional compensation for the Veteran’s dependent children on the basis that they were pursuing courses of instruction at educational institutions approved by VA. The Veteran is seeking earlier effective dates for the VA recognition of his two sons, B.M. and N.M., as dependents on the basis that they were pursuing courses of instruction at educational institutions approved by VA. Any Veteran entitled to disability compensation whose disability is rated not less than 30 percent, shall be entitled to additional compensation for a dependent child. See 38 U.S.C. 1115; 38 C.F.R. § 3.4 (b)(2). The term “child” means a person who is unmarried and-(i) who is under the age of eighteen years; (ii) who, before attaining the age of eighteen years, became permanently incapable of self-support; or (iii) who, after attaining the age of eighteen years and until completion of education or training (but not after attaining the age of twenty-three years), is pursuing a course of instruction at an approved educational institution. See 38 U.S.C.A. § 101 (4)(A); 38 C.F.R. § 3.57 (a). Additional pension or compensation may be paid from a child’s 18th birthday based upon school attendance if the child was at that time pursuing a course of instruction at an approved school 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). Pension or compensation based upon a course of instruction at an approved educational institution which was begun after a child’s 18th birthday may be paid from the commencement of the course if a claim is filed within 1 year from that date. 38 C.F.R. § 3.667 (a)(2). Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. 5110; 38 C.F.R. § 3.400. In this case, the evidence establishes that the Veteran’s son, B.M., was born in May 1993; his other son, N.M., was born in March 1995. They were added to the Veteran’s dependency award as his minor children effective August 1, 2007. The record indicates that B.M. was removed from the Veteran’s dependency on May [REDACTED], 2011, the date of B.M.’s birthday; and an December 2012 award notification letter informed the Veteran that he was receiving additional benefits for one minor child, that it was his responsibility to notify VA of any changes in the status of his dependents, and that N.M. would be removed from his dependency award effective March [REDACTED], 2013, the date of N.M’s 18th birthday. On April 20, 2015, the Veteran submitted a VA Form 21-0538, Status of Dependents Questionnaire, listing both B.M. and N.M., their dates of birth, their places of birth, and their social security numbers. In response, VA provided the Veteran with VA Forms 21-674, Request for Approval of School Attendance. In June 2016, VA received the completed VA Forms 21-674. The form for B.M. indicated that the official beginning date of regular term or course was August 27, 2015 and his expected date of graduation was January 1, 2016. The form for N.M. indicated that the official beginning date of regular term or course was August 28, 2013 and his expected date of graduation was May 28, 2017. The Veteran indicated that the beginning date of the last term was January 23, 2016. In the June 2016 decision on appeal, the Agency of Original Jurisdiction (AOJ) added B.M. to the Veteran’s dependency award as a school child, effective September 1, 2015; he was removed from award effective February 1, 2016. In addition, the AOJ added N.M. to the Veteran’s dependency award as a school child, effective February 1, 2016; he was removed from award effective July 1, 2017. In this case, an effective date earlier than September 1, 2015, for the additional allowance of B.M. as a dependent pursuing courses of instruction at an educational institution approved by VA, is not warranted. However, it appears that N.M.’s fall term began in August 2015; as such, September 1, 2015, is also the correct date for the additional allowance of N.M. as a dependent pursuing courses of instruction at an educational institution approved by VA. VA law requires a specific claim for additional benefits on the basis of a dependent child who is pursuing a course of instruction at an educational institution approved by VA and provides a time limit for filing such a claim to ensure uninterrupted benefits. In this case, there is no dispute of fact as to the actual receipt of the claim for additional benefits on that basis. There is also no dispute that the required information was not provided within one year of the date the Veteran’s sons turned 18. Indeed, B.M. turned 18 years of age in 2011, and N.M. turned 18 years of age in 2013. The Veteran submitted both VA Forms 21-674 in June 2016. If VA receives a claim for additional benefits based on school attendance one year or more after a child turns 18 (but before age 23), as is the case here, the additional dependency benefits may be paid effective as of the first day of the month following the month school attendance began, as long as VA receives the claim within one year of the date school attendance began. See 38 C.F.R. § 3.667 (a)(2)(Emphasis added). According to the VA Forms 21-674, B.M. commenced his senior year courses at an approved educational institution in August 2015; N.M. commenced his junior year courses at an approved educational institution in January 2016; however, it appears that he also began school in August 2015. The Veteran’s claim was received within one year of these dates, in June 2016. Applying these facts to the law, the correct effective dates are September 1, 2015, which are the first days of the calendar month following the months in which the awards became effective (i.e., the date upon which their classes commenced). See 38 C.F.R. §§ 3.31, 3.667(a)(2). The Veteran has essentially advanced an argument, grounded in equity, that he did not file a claim earlier because he was not aware that his sons were eligible for any educational benefits from VA for their college studies. The Board, however, is bound to apply the law as it is written, and its decision is dictated by the relevant statutes and regulations. The Board is without authority to grant benefits simply because it might perceive the result to be equitable. See 38 U.S.C. §§ 503, 7104 (2014); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board further observes that no equities, no matter how compelling, can create a right to payment which has not been provided for by Congress. Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). VA regulations simply do not provide a remedy for this theory of equity. Based on all of the evidence in this case, September 1, 2015, is the correct date for the awards of additional benefits of both B.M. and N.M. as dependents on the basis that they were pursuing courses of instruction at an educational institution approved by VA. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Olson, Counsel