Citation Nr: 21015666 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 15-46 315 DATE: March 18, 2021 REMANDED The issue of entitlement to recognition of P. as a dependent school child of the Veteran after P. received Dependents’ Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35 is remanded for additional development. REASONS FOR REMAND The Veteran served on active duty from July 1967 to July 1970, including service in the Republic of Vietnam. For his service, the Veteran was awarded the Combat Infantryman Badge and a Purple Heart. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2010 decision issued by the Department of Veterans Affairs (VA) Appeals Management Center (AMC). Jurisdiction of the Veteran’s claims file currently resides with the St. Petersburg, Florida Regional Office (RO). In May 2019, the Board denied recognition of P. as a school child of the Veteran. The Veteran disagreed and timely appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In June 2020, the Veteran and the Secretary filed a Joint Motion for Remand (JMR) requesting that the May 2019 Board decision be vacated and remanded. The Court granted the JMR later in June 2020. The case has returned to the Board. Recognition of P. as a Dependent School Child In the June 2020 JMR, the parties agreed that the Board erred in May 2019 in determining that the Veteran was not entitled to an additional amount of compensation for his son P. as a dependent school child, as P. had received DEA benefits under 38 U.S.C. Chapter 35 since March 4, 2004. Specifically, the parties indicated that, while P. may have been eligible to receive DEA benefits effective March 4, 2004, the Board did not adequately address when P. “elected” to receive these benefits, as 38 C.F.R. § 21.3023’s bar for a child to receive DEA benefits while also being recognized as a veteran’s dependent requires the child at issue to actively select receiving DEA benefits. In particular, the parties noted that, in August 2013, a VA RO issued a letter indicating that P. began receiving DEA benefits on February 18, 2009, suggesting that P. in fact did not choose to receive DEA benefits beginning on March 4, 2004. In granting the parties’ JMR and vacating and remanding the Board’s May 2019 decision, the Court directed the Board to determine at which point P. elected to receive benefits. After reviewing the Veteran’s claims file, the Board finds that remand is warranted as there are possibly significant documents currently missing from the Veteran’s claims file which would illuminate the date of P.’s election to receive DEA benefits. In support of this determination, the Board first notes that the effective date of eligibility for DEA benefits changed on multiple occasions during the pendency of the Veteran’s claim. Specifically, the Veteran first filed a VA Form 21-686c, Declaration of Status of Dependents, seeking to add P. to his award as a dependent child in January 2007. This VA Form 21-686c was received within one year of a February 2006 decision notification letter which indicated that the Veteran had a combined 70 percent disability rating, effective March 4, 2004. Following the issuance of the December 2010 decision on appeal, VA issued another decision notification letter in March 2012 which noted that the disability rating for the Veteran’s service-connected posttraumatic stress disorder (PTSD) was increased from 50 percent to 100 percent, effective January 19, 2011. This March 2012 letter also noted that basic eligibility to DEA benefits was established effective January 19, 2011. About 6 months later, VA issued another decision notification letter. In September 2012, VA notified the Veteran that entitlement to a total disability rating based on individual unemployability (TDIU) had been granted, effective from February 18, 2009 to January 19, 2011. Additionally, VA indicated that an earlier effective date of February 18, 2009 was also assigned for eligibility to DEA benefits. The August 2013 letter referenced in the JMR noted that P. had elected to receive DEA benefits effective February 18, 2009. However, pursuant to an April 2014 rating decision, VA again granted an earlier effective date for eligibility to DEA benefits, March 4, 2004. Since the August 2013 letter, VA has not associated any document with the claims file which clearly states when P. elected to receive DEA benefits. But, in December 2015 correspondence, the Veteran indicated that P. may have elected to receive DEA benefits earlier than February 18, 2009. Specifically, the Veteran stated that, in June 2014, P. had filed a claim seeking DEA benefits retroactively from July 2, 2007 to February 18, 2009—dates during which he was enrolled as an undergraduate student at the University of Florida. The Veteran then indicated that, in July 2014, the Muskogee, Oklahoma VA RO issued P. a decision denying him DEA benefits prior to February 18, 2009. The Veteran elaborated that P. then filed a notice of disagreement (NOD) in August 2014 seeking DEA benefits retroactively from January 1, 2007 to February 18, 2009—i.e., the day after his 18th birthday up through the election date stated in the August 2013 letter. The Veteran stated that P.’s claim was then granted via another decision issued in January 2015 which awarded P. DEA benefits beginning January 1, 2007. Currently, copies of any claims P. submitted regarding election of DEA benefits—as well as decisions on those claims—are not associated with the Veteran’s claims file. As the current state of the Veteran’s claims file is unclear as to exactly when P. elected to receive DEA benefits, the Board remands the instant case for the Agency of Original Jurisdiction (AOJ) to attempt to associate these outstanding documents with the Veteran’s claims file. The matter is REMANDED for the following action: 1. Obtain any copies of any claims and decisions P. may have filed regarding receiving DEA benefits, including: (a.) A June 2014 claim; (b.) A July 2014 decision; (c.) An August 2014 NOD; (d.) A July 2015 decision; and (e.) Any correspondence P. may have submitted in January 2015 attempting to clarify the status of his DEA benefits. 2. If such documents were associated with a separate paper claims file, scan and upload into the Veteran’s claims file any documents relevant to those requested in Item (1). 3. After Items (1) and (2) are completed to the extent possible, associate a memorandum with the Veteran’s claims file regarding the exact date for which VA paid P. DEA benefits. (Signature on Next Page) S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.S. Pettine, 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.