Citation Nr: 21022709 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 18-20 793 DATE: April 19, 2021 ORDER Termination of dependent pay for school child Z.S., effective August 27, 2012, was proper. Termination of dependent pay for school child J.M., effective September 16, 2014, was proper. FINDINGS OF FACT 1. Beginning August 27, 2012, Z.S. was in receipt of Chapter 35 educational assistance. 2. Beginning September 16, 2014, J.M. was in receipt of Chapter 35 educational assistance. CONCLUSIONS OF LAW 1. The criteria for entitlement to dependent pay for school child Z.S., effective August 27, 2012, are not met. 38 U.S.C. § 3562; 38 C.F.R. §§ 3.667(f), 3.707, 21.3023; Sabonis v. Brown, 6 Vet. App. 426 (1994). 2. The criteria for entitlement to dependent pay for school child J.M., effective September 16, 2014, are not met. 38 U.S.C. § 3562; 38 C.F.R. §§ 3.667(f), 3.707, 21.3023; Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 1978 to November 1978 and from July 1981 to July 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of May 2015 and September 2015 decisions by the VA Regional Office (RO). In February 2021, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The issue of entitlement to waiver of recovery of an overpayment of VA disability benefits in the amount of $12,212.22 was raised by the Veteran in various submissions and in his testimony before the Board. However, it has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ, specifically the VA Committee on Waiver and Compromises at the VA Debt Management Center, for appropriate action. Dependent School Children In general, Chapter 35 educational assistance (DEA) is payable to a child of a veteran who has a total disability permanent in nature resulting from a service-connected disability. 38 C.F.R. § 21.3021. However, payment of both a dependency allowance as part of a veteran's disability compensation benefits and educational assistance under Chapter 35 constitutes a duplication of benefits that is strictly prohibited after the child has elected to receive the latter benefit. See 38 U.S.C. § 3562; 38 C.F.R. §§ 3.667(f), 3.707, 21.3023. In the Veteran's case, basic eligibility for Chapter 35 educational assistance has been established since March 11, 2012. A child who is eligible for educational assistance and who is also eligible for a dependency allowance as part of a veteran's disability compensation based on school attendance must elect whether he or she will receive educational assistance or compensation. An election of educational assistance is a bar to subsequent payment of compensation on account of the child based on school attendance on or after the age of 18 years. 38 38 C.F.R. § 21.3023. In the decisions on appeal, a VA RO removed the Veteran's children Z.S. and J.M. from his award, effective August 27, 2012, and September 16, 2014 respectively, based upon a retroactive grant of entitlement to DEA benefits effective March 11, 2012. The Veteran asserts that his children should not have been removed from his award because he was not at fault in creating the overpayment. While the Board is sympathetic to the Veteran's situation, it must deny his appeal as his children's receipt of educational assistance under Chapter 35 and his concurrent receipt of dependency allowance is disallowed under 38 C.F.R. § 3.667(f). Specifically, the evidence of record indicates that Z.S. and J.M. began being paid Chapter 35 benefits on August 27, 2012 and September 16, 2014, respectively. Accordingly, as duplicative payments are not permitted under 38 C.F.R. § 3.667(f), the Board must deny the Veteran's appeal as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Roya Bahrami, 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.