Citation Nr: 21008632 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 05-29 247 DATE: February 17, 2021 REMANDED Entitlement to additional dependency compensation for Amber, Brittany, and Brandy is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Navy from September 1978 to August 1982 and from March 1983 to March 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was previously remanded by the Board in November 2016 and May 2018. The issue of increased evaluations for the residuals of a fracture of the right tibia and fibula, a right knee disability, and a right hip disability will be the subject of a separate Board decision. Entitlement to additional dependency compensation for Amber, Brittany, and Brandy is remanded. While the delay is regrettable, the Board finds that it must again remand the issue of entitlement to additional dependency compensation for Amber, Brittany, and Brandy. As explained above, the Board previously remanded this matter in November 2016 and May 2018. At that time, the Board explained that it was unclear from the record the months that the Veteran had been in receipt of additional dependency compensation for these alleged dependents and, importantly, the months that Amber, Brittany, and Brandy had been paid Chapter 35 educational benefits. As noted in the May 2018 Board remand, the law does not allow for the Veteran to be paid additional dependency compensation for a dependent in receipt of those Chapter 35 benefits. 38 U.S.C. § 3562. In an attempt to comply with the Board’s 2016 remand directives, an apparent audit was completed in February 2017. Notably, while the section of the report referring to Amber includes the same surname supplied by the Veteran in his initial claim form, the audit report identifies different surnames for both Brittany and Brandy. Entitlement to recognition of a dependent for the purposes of additional dependency compensation is only available for dependent children when the claimed children are unmarried. The Board notes that, to the extent that these changes in surname indicate Brittany or Brandy were married, those marriages would disqualify them from being considered dependent children for the purposes of additional dependency compensation. 38 C.F.R. § 3.57. In any event, the Board notes that this apparent audit does not include a listing of the months that the Veteran himself had been paid additional dependency compensation pursuant to 38 U.S.C. § 1115 compared to the months that each of the claimed dependents had been in receipt of Chapter 35 benefits. The audit also does not include a definitive statement clearly indicating that the months and amounts in question were Chapter 35 benefits paid to the claimed children. As no such accounting has been completed, the Board cannot find that there has been substantial compliance with its remand directives. Stegall v. West, 11 Vet. App. 268 (1998). To that end, the Board notes that the claims file includes an internal Deferred Rating Decision from April 2019 in which an RO official stated that educational benefits records were not available. As records relating to educational benefits provided by VA are within its constructive custody, the RO should make all efforts to ensure that such records are obtained and considered in determining which months Amber, Brittany, and Brandy were in receipt of Chapter 35 benefits and, as a result, which periods the Veteran is not entitled to additional dependency compensation as a matter of law. Finally, the Board observes that while a remand is required pursuant to the holding in Stegall, it appears that additional dependency compensation was granted to the Veteran for Amber’s dependency as the result of an August 2011 decision. The notification letter also reportedly added Brittany and Amber to his award. However, the award print document generated as a result of that form continues to indicate that, with respect to Amber and Brandy, each was removed from the Veteran’s award as of the time they attained age 18. Aside from a brief period from March 1, 2012, to April 16, 2012, when Brittany was apparently added to the Veteran’s award as an 18 to 23-year old attending school, she has also apparently not been included in the Veteran’s award. As such, the Board cannot say that this decision represents a full grant of benefits sought on appeal with respect to any of the claimed dependents. The matters are REMANDED for the following action: 1. Conduct an audit or review of the Veteran’s file, to include any educational benefit records associated with the Veteran’s claims file, to determine the months Amber, Brittany, and Amber have been in receipt of Chapter 35 educational benefits and provide a statement identifying those periods of benefits for each child. When doing so, please clarify the reason for the change in surname for Brittany and Brandy. 2. The record currently indicates the Veteran has not been paid any additional dependency compensation for Amber, Brittany, or Brandy at any period after their respective 18th birthdays with the exception of a period March 1, 2012, to April 16, 2012, when VA recognized Brittany as a school-aged child. Conduct an audit to determine whether the Veteran was paid any additional dependency compensation for these claimed dependents after their respective 18th birthdays beyond that single period in 2012 for Brittany and identify each month he was in receipt of such benefits for each child. M. Tenner 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.