Citation Nr: 21075161 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 17-44 056 DATE: December 17, 2021 ORDER Entitlement to resumption of additional dependency compensation for J.D. beginning September 2014 based on his full-time attendance at an approved educational institution is denied. FINDINGS OF FACT 1. J.D. is the Veteran's biological child and was born on April [REDACTED], 1994. 2. In January 2006, the Department of Veterans Affairs issued a rating decision determining that the Veteran was permanently and totally disabled due to service-connected disabilities. 3. Effective September 20, 2012, J.D. elected to receive Chapter 35 educational benefits. CONCLUSION OF LAW The criteria for resumption of additional dependency compensation for J.D. beginning September 2014 have not been met. 38 U.S.C. §§ 1115, 3562; 38 C.F.R. §§ 3.57, 3.667(f), 21.3032. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1989 to October 2004. J.D. is his biological adult son. This matter comes before the Board of Veterans' Appeals (Board) from a May 2016 administrative decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) that removed J.D. from the Veteran's award as a dependent and terminated the payment of additional dependency compensation for J.D., effective September 23, 2012. This effective date was later revised to September 20, 2012, after further clarification regarding the date that J.D. elected Chapter 35 benefits, but that revised effective date is irrelevant to the current appeal. The Veteran submitted a notice of disagreement to the May 2016 administrative decision, contending that J.D. ceased receiving Chapter 35 benefits effective September 2014 and that resumption of additional dependency compensation was warranted. He subsequently perfected his appeal to the Board in August 2017. A Board hearing was held in July 2021. A transcript is of record. Entitlement to resumption of additional dependency compensation for J.D. The current appeal before the Board relates to the interplay between two distinct VA benefits touching on the Veteran's relationship to his adult son. The Board finds it useful at the outset to provide a brief history of the grant of service connection and ultimate permanent and total disability rating that led to the benefits in question. The Veteran was first granted service connection for a variety of disabilities in an April 2005 rating decision and was assigned an initial combined disability rating of 90 percent. Given this rating, VA considered his previous reports of his dependents and added J.D. to his award as a minor child, which resulted in a higher amount of compensation. This benefit is available when a veteran who is entitled to disability compensation and whose disability is rated not less than 30 percent has a dependent that meets VA's definition of a child. See 38 U.S.C. § 1115; 38 C.F.R. § 3.4(b)(2). However, when the requisite criteria for this additional compensation are met, the benefit "flows to only the veteran or his legal representative." Redding v. West, 13 Vet. App. 512, 514 (2000). In other words, this benefit is payable directly to the Veteran, and not the child in question. When J.D. was added to the Veteran's award, he was scheduled to be removed in April 2012 upon his attainment of age 18. In a January 2006 rating decision, the Veteran was granted a total disability rating based on individual unemployability. VA determined at that time that this total rating was permanent in nature and, as a consequence, basic eligibility to Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35 was also granted. DEA benefits are payable to a child of a veteran who died of a service-connected disability, who died while having a disability evaluated as total and permanent in nature resulting from a service-connected disability, who has a total disability permanent in nature resulting from a service-connected disability, or a person who is on active duty as a member of the Armed Forces and who now is, and, for a period of more than 90 days, has been, listed by the Secretary concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in line of duty by a foreign government or power. 38 C.F.R. § 21.3021(a)(1). In contrast to additional dependency compensation pursuant to 38 U.S.C. § 1115, DEA benefits under Chapter 35 are educational assistance benefits paid directly to the dependents themselves, rather than the veteran in question. See e.g. 38 U.S.C. § 3511. At the time that DEA benefits were granted, J.D. was still a minor child. However, shortly before his 18th birthday, the Veteran submitted a February 2012 VA Form 21-674 (Request for Approval of School Attendance) based on J.D.'s ongoing school attendance after attaining age 18. This is a prescribed form for a claim for additional dependency compensation for a school-aged child. In addition to minor children, a veteran in possession of at least a 30 percent disability rating is entitled to additional dependency compensation for children between the ages of 18 and 23 who are pursuing a course of study at an approved educational institution. 38 U.S.C. § 1115(1)(F); 38 C.F.R. § 3.667. The claim was ultimately granted. The record then reflects that J.D. submitted a claim for DEA benefits under Chapter 35 that was granted effective September 20, 2012. He continued to be in receipt of this benefit until September 3, 2014. However, after that date, he continued to pursue a full-time course of study at Cal State University, as confirmed in a January 2017 VA Form 21-674. The Veteran now contends that, because J.D. was no longer in receipt of Chapter 35 benefits after September 2014 but continued to be a child between the ages of 18 and 23 who was attending school, his previous benefits of additional dependency compensation for J.D. should resume pursuant to 38 U.S.C. § 1115. In beginning its analysis of the Veteran's contentions and the appeal before the Board, it is important to note that the Veteran does not contend that he is entitled to § 1115 benefits for the period that J.D. was in receipt of Chapter 35 benefits. Multiple provisions of VA's governing statutes and regulations explicitly hold that when a child is in receipt of Chapter 35 DEA benefits, the veteran in question is not entitled to additional § 1115 compensation for that child. See e.g., 38 U.S.C. § 3562; 38 C.F.R. § 3.667(f)(1). The Veteran argues that this nonduplication of benefits does not apply to his situation and relies heavily on the provisions of 38 C.F.R. § 21.3023. In extensive arguments submitted in March 2017 and reiterated elsewhere in the claims file, the Veteran contends that this regulation has three provisions regarding nonduplication of benefits based on a child's election to receive Chapter 35 DEA benefits. He contends in essence that VA has up to this point erroneously relied on subsection (a) of this regulation when the provisions of (c) apply to him and permit the resumption of § 1115 compensation for a dependent for veterans who are alive and have been rated permanently and totally disabled. Subsection (a) reads as follows: Child; age 18. A child who is eligible for educational assistance and who is also eligible for pension, compensation or dependency and indemnity compensation based on school attendance must elect whether he or she will receive educational assistance or pension, compensation or dependency and indemnity compensation. 38 C.F.R. § 21.3023(a) (emphasis added). The Veteran points to the language bolded above to demonstrate that this section does not apply to his situation. He contends that this paragraph only applies to cases where the child in question is both eligible for educational assistance and where the child, in his or her own right, is eligible to pension, compensation, or dependency and indemnity compensation. He argues that the § 1115 benefits are not J.D.'s benefits, but instead are directly owed to the Veteran in the Veteran's own right. Accordingly, any election by J.D. under this section cannot affect the Veteran's right to § 1115 benefits. The Veteran then points to subsection (c). This section relates to the explicit election of a child and holds that any such election must be submitted to VA in writing. 38 C.F.R. § 21.3023(c). The Veteran argues that the third subsection to this provision is applicable to his case. It reads: A child other than a helpless child, whose eligibility was based on a finding that the veteran had a permanent total service-connected disability and who commenced a program of education under DEA may not thereafter qualify as a dependent for disability compensation purposes if the veteran is later found to be less than permanently and totally disabled, or for pension, compensation or dependency and indemnity compensation after the veteran's death. 38 C.F.R. § 21.3023(c)(3). (emphasis added). The Veteran correctly states that he is a veteran who has been issued a permanent and total service-connected disability. He then correctly states that J.D., who has not been determined to be helpless, commenced a program of education under DEA. However, the Veteran contends that the next phrase that has been bolded above holds that when a veteran's permanent and total rating is not at some later point reduced or is found to be less than permanent, a child who stopped receiving DEA benefits may "thereafter qualify as a dependent for disability compensation purposes." Essentially, the argument is that by explicitly stating that a veteran is not entitled to resumption of § 1115 benefits when his or her permanent and total rating is reduced, VA's regulations here open the door to resumption of § 1115 benefits for children of veterans whose permanent and total rating has not been reduced. While the Board finds that the Veteran has presented a clear argument as to why he feels he is entitled to additional dependency compensation under § 1115 for J.D. after September 2014, the Board does not ultimately agree with his reading of the applicable regulations. In this regard, the Board observes that while the Veteran has accurately quoted the provisions of 38 C.F.R. § 21.3023(a), he has omitted a crucial subsection to this provision. The very first subsection under subsection (a) is unfortunately fatal to his claim. It reads: An election of educational assistance either before or after the age of 18 years is a bar to subsequent payment or increased rates or additional amounts of pension, compensation or dependency and indemnity compensation on account of the child based on school attendance on or after the age of 18 years. The bar is equally applicable where the child has eligibility from more than one parent. 38 C.F.R. § 21.3023(a)(1). This precise series of events has occurred in the instant case. Here, J.D. made an election after the age of 18 to receive educational assistance pursuant to Chapter 35. Although he ceased receiving these benefits in September 2014 despite his ongoing full-time attendance at Cal State University, this election "is a bar to subsequent payment or increased rates . . . on account of the child based on school attendance on or after the age of 18 years." Id. This section's inclusion of language regarding "increased rates" of compensation is clearly referring to § 1115 benefits that are owed to veterans who possess at least a 30 percent disability and have a child attending school between the ages of 18 and 23. Nothing in 38 C.F.R. § 21.3023(a) provides any exception to the clear language that additional § 1115 benefits are not permitted once a child elects to receive Chapter 35 benefits. The Board has considered the Veteran's arguments with respect to 38 C.F.R. § 21.3023(c)(3). However, the Board finds that his arguments do not fully contemplate the nature and purpose of this section. This section does not grant additional rights to additional dependency compensation under § 1115 in contravention to the clear bar set forth at 38 C.F.R. § 21.3023(a)(1). Rather, this subsection merely reiterates the bar to § 1115 benefits found in section (a)(1) in the scenario when a child in receipt of Chapter 35 benefits loses eligibility to those benefits due to the reduction of a permanent and total rating of a veteran parent whose rating had initially authorized Chapter 35 benefits to that child. A demonstration of a hypothetical scenario highlighting the applicability of subsection (c)(3) may be useful. This subsection applies when: first, a veteran is granted a permanent and total disability rating, which, as a consequence, entitles a child to Chapter 35 benefits under 38 C.F.R. § 21.3021(a)(1); second, the child elects to receive Chapter 35 benefits; and third, the underlying permanent and total disability rating is thereafter reduced. When this occurs, the child in question is no longer entitled to Chapter 35 benefits because his or her parent no longer has the qualifying permanent and total rating. Subsection (c)(3) merely states that, despite the fact that the child is no longer entitled to Chapter 35 benefits, the veteran in question remains ineligible to receive additional § 1115 benefits on account of that child's full-time attendance at an approved educational institution pursuant to 38 C.F.R. § 3.667. Rather than granting additional § 1115 benefits for veterans whose permanent and total disability rating has not been reduced, subsection (c)(3) merely reiterates that revocation of eligibility to Chapter 35 benefits does not renew eligibility under § 1115. The bar set forth in subsection (a)(1) remains. (Continued on the next page) The Board is sympathetic to the Veteran's argument and agrees that subsection (c)(3) at first blush may imply the reverse when read in isolation. However, there are no exceptions to the total bar set forth at 38 C.F.R. § 21.3023(a)(1) that an election of a child to receive Chapter 35 DEA benefits bars the veteran parent of that child from receiving § 1115 compensation for that child at any point after that election. The appeal is therefore denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (Where there is no entitlement under the law to the benefit sought, the appeal must be denied). DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Whitelaw, 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.