Citation Nr: A21018384 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 200520-86291 DATE: November 17, 2021 ORDER Entitlement to additional compensation for dependent child, E.M., is denied. FINDING OF FACT At the time of receipt of the Veteran's claim for additional compensation for dependents, E.M. was 23 years old and enrolled at an educational institution. CONCLUSION OF LAW The criteria for entitlement to additional compensation for dependent child, E.M., have not been met. 38 U.S.C. §§ 101, 1115, 1134, 1135, 5110; 38 C.F.R. §§ 3.57, 3.503, 3.667. REASONS AND BASES FOR FINDING AND CONCLUSION In February 2020, the Agency of Original Jurisdiction (AOJ) determined that VA cannot pay dependent aid for the Veteran's biological child E.M. In May 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal. Per a March 2018 rating decision, service connection was established for posttraumatic stress disorder (PTSD), rated 70 percent disabling, effective October 31, 2017. On February 18, 2020, the Veteran submitted VA Form 21-686c, Application Request to Add And/Or Remove Dependents requesting to add E.M. (DOB 04/22/1996) as a dependent. Also received in February 2020 was a VA Form 21-674 Report of School Attendance reflecting that E.M. was enrolled at an educational institution from August 19, 2019 to December 13, 2019. 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. An award of additional compensation for dependents based on the establishment of a rating in the percentage specified by law shall be payable from the effective date of such 30 percent or more rating, but only if proof of dependents is received within one year from the date of such rating. 38 U.S.C. § 5110 (f). 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); 38 C.F.R. § 3.57 (a). The allowance is generally discontinued when a dependent child turns 18, or when the child turns 23 if she is enrolled in school. 38 C.F.R. §§ 3.503, 3.667. 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). Proof that the dependent, E.M., was of eligible age for additional compensation under VA statutory and regulatory provisions was not received within one year of the March 2018 rating decision's establishment of a rating over 30 percent. 38 U.S.C. § 5110 (f). At the time of that decision, E.M. did not meet the eligibility standards for additional compensation for a dependent, as she had surpassed the requisite 18-year-old age limit and was not enrolled in an educational institution. Once the Veteran filed her application for dependent benefits in February 2020, E.M. was 23 years old. While the VA Form 21-674 reflects that she was enrolled in an educational institution as of August 19, 2019, at that point she was 23 years old. Thus, E.M. is no longer considered a "child" per § 3.57 as she is over the age of 18 and was not enrolled in an educational institution prior to turning 23. Thus, entitlement to additional compensation is not warranted. As E.M. is neither a helpless child, under the age of 18 years old, nor enrolled in a course of instruction at an approved institution prior to turning age 23, the Board has not authority to grant entitlement to additional dependency compensation for E.M. 38 U.S.C. § 101 (4)(A); 38 C.F.R. § 3.57 (a). In light of the above, the appeal is denied. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.