Citation Nr: 21067623 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 18-33 800 DATE: November 4, 2021 ORDER Entitlement to retroactive recognition of C.J. as a dependent child of the Veteran for additional Department of Veterans' Affairs (VA) dependency benefits based on school attendance from 18 to 23 years old from January 2008 to June 2008, is denied. FINDING OF FACT The Veteran did not inform VA within one year of C.J.'s 18th birthday and within one year of her respective commencement of schooling in January 2008 while C.J. was between 18 and 23 years old. CONCLUSION OF LAW The criteria for retroactive recognition of C.J. as a dependent school child from 18 years old to 23 years old from January 2008 to June 2008 have not been met. 38 U.S.C. §§ 1115, 5107, 5110; 38 C.F.R. §§ 3.4(b)(2), 3.57, 3.102, 3.667. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from May 1981 to June 1992. As determined by the Board in the September 2015 decision, this matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 action of the VA Regional Office (RO) to remove C.J. as a dependent child effective from January 2008, C.J.'s 18th birthday. The Board notes that in September 2015, the Board determined that a January 2009 notice of disagreement was timely received as to the removal of C.J. as a dependent child. Therefore, the Board at that time remanded the matter for the issuance of a statement of the case, which was issued in May 2018 and the Veteran perfected a Board appeal by filing a Form 9 in June 2018. The Veteran provided testimony before the undersigned Veterans Law Judge in March 2021, and a hearing transcript is associated with the record. An award of additional compensation on account of dependents based on the establishment of a disability rating in the percentage evaluation specified by law for the purpose shall be payable from the effective date of such rating; but only if proof of dependents is received within one year from the date of notification of such rating action. 38 U.S.C. § 5110(f); 38 C.F.R. § 3.401(b)(3). The effective date for additional compensation for dependents will be the latest of the following dates: (1) date of claim; (2) date the 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; or (4) date of commencement of the service member's award. 38 C.F.R. § 3.401(b). With regard to legal entitlement, as noted above, the Veteran is entitled to an additional allowance for dependent children. 38 U.S.C. § 1115. The term "child" is defined, for purposes of Veterans' benefits, as an unmarried person who is a legitimate child, a child legally adopted before the age of 18 years, a stepchild who acquired that status before the age of 18 years and who is a member of the Veteran's household or was a member of the Veteran's household at the time of the Veteran's death, or an illegitimate child and 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 reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.57. 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 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). 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 of study if a claim is filed within one year from that date. 38 C.F.R. § 3.667(a)(2). 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). The Veteran's combined disability rating was 30 percent disabling for the period in question from January 2008 to June 2008. See October 2020 Rating Code Sheet. Therefore, he met the 30 percent disability rating threshold for additional VA compensation for a dependent. The Veteran contends that he is entitled to dependency benefits for C.J. from January 2008 to June 2008 because she was still in high school despite turning 18 years old in January 2008. In the April 2015 Board hearing related to the issue of timeliness of the notice of disagreement (NOD) for dependency benefits, the Veteran reported that he realized he was informed that his children would be removed from his dependency award when they turned 18 years old. However, he contends that it was never explained to him regarding C.J., although it was explained to him regarding his second daughter. The Veteran contends that VA removed C.J. from his award in January 2008 and did not inform him that he was required to submit paperwork. He contends that VA was responsible for assisting the Veteran and that he was unaware of the ramifications. ] During the March 2021 Board hearing before the undersigned Veterans Law Judge regarding the current issue on appeal, the Veteran contended that he is entitled to dependency benefits for C.J. from January 2008 to June 2008. The Veteran's representative also reported that he submitted VA Form 21-674, but he was unsure when the Veteran submitted it or when it was date stamped. Turning to the evidence of record, in a November 2004 notification letter that awarded dependency benefits, the Veteran was advised that in January 2008, on C.J.'s 18th birthday, the Veteran's disability benefits would be reduced from $410.00 to $391.00, and then reduced to $363.00 on his other daughter's 18th birthday in April 2012. The Veteran was advised to review VA Form 21-8764 which explained, Veterans having a 30% or more service-connected condition may be entitled to additional compensation for a spouse, dependent parents, or unmarried children under 18 (or under 23 if attending an approved school) or when prior to age 18 the child has become permanently incapable of self-support because of mental or physical defect. https://www.vba.va.gov/pubs/forms/21-8764.pdf (2004 version). He was also informed that if he has a disability rating of 30 percent or more, he must promptly advise VA of any changes in the status of his dependents. The reduction in payments due to C.J.'s 18th birthday, as well as his other daughter's 18th birthday, was again reiterated in a March 2005 notification letter. In June 2007, the Veteran was advised that in January 2008, on C.J.'s 18th birthday, the Veteran's disability benefits would be reduced from $441.00 to $429.00, and then reduced to $389.00 on his other daughter's 18th birthday in April 2012. He was again advised to review VA Form 21-8764. The increase in the payment amount as stated in the November 2004 and March 2005 letters were due to a cost of living increase effective from December 2006. The Veteran filed a NOD in January 2009, which was determined to be timely filed by the Board in September 2015. The Veteran wrote he was appealing money taken from his disability check from January 2008 to June 2008 for daughter C.J. However, the Veteran did not report that C.J. was still in school for that period or provide the name of the school, either of which would have prompted VA to inquire further. In March 2012, the Veteran submitted a completed VA 21-674c Request for Approval of School Attendance, which was a July 2005 version of the form. The Veteran signed it in March 2012, and it was date-stamped as received that same month. In June 2018, the Veteran submitted a letter from C.J.'s prior high school registrar office that confirmed high school attendance from August 2004 to June 2008. Under 38 C.F.R. § 3.667, additional compensation for a child may be paid for school attendance if the claim is filed either within one year of the child's 18th birthday, or one year of the date of commencement of the course of study. However, here, neither criteria were met. The Veteran did not notify VA of C.J.'s continued school attendance when she turned 18 years old until March 2012, which was more than 4 years after C.J.'s 18th birthday and almost 4 years after she continued attending school after her 18th birthday. Consequently, the Veteran's application for compensation for C.J. was not timely filed under the criteria of 38 C.F.R. § 3.667, and thus the Veteran is not entitled to dependency benefits for C.J. from January 2008 to June 2008. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As detailed above, the Veteran was informed in November 2004, March 2005, and June 2007 letters that he was in receipt of payment for his children and that his disability benefits were to decease when they turned 18 years old. He was also informed of his responsibility to immediately report any changes in the status of his dependents, which includes informing VA that his children were still in school after they turned 18 years of age. For VA compensation purposes, notice means written notice sent to a claimant or payee at his or her latest address of record. 38 C.F.R. § 3.1(q). VA's compensation and pension system is inherently reliant on the accuracy of information provided by claimants. Here, in the January 2009 NOD, the Veteran did not explain that C.J. was attending school. Thus, the Board finds that there is no plausible argument in support of any asserted failure to notify him of his responsibility to submit documentation that C.J. was still in school. Ignorance of VA regulations is not a defense. The U.S. Court of Appeals for Veterans Claims has held that persons dealing with the Government are charged with knowledge of Federal statutes and lawfully promulgated agency regulations, regardless of actual knowledge or hardship resulting from innocent ignorance. See Morris v. Derwinski, 1 Vet. App. 260, 265 (1991), citing Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-85 (1947); see also Velez v. West, 11 Vet. App. 148, 156- 57 (1998). Thus, even if the Veteran may have been unaware of the VA regulations and law, he was necessarily charged with knowledge of the regulation. The Board sympathizes with the Veteran regarding the inequities he believes result from not being entitled to those dependent benefits. However, the Board is bound by the law and is without authority to generally grant benefits on an equitable (fairness) basis. See 38 U.S.C. §§ 503, 7104 (2012); Burris v. Wilkie, 888 F.3d 1352, 1358 (Fed. Cir. 2018) (holding that "§ 503 provides the Secretary with the authority to grant the precise relief that Appellants request here [payment of moneys], and the Secretary has not delegated that authority"). Thus, the Board finds that the criteria for retroactive recognition of C.J. as a dependent child between the age of 18 and 23 years old based on school attendance from January 2008 to June 2008, for the purpose of additional VA dependency compensation have not been met, and the claim is denied. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah Campbell, 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.