Citation Nr: 21023061 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-13 708 DATE: April 20, 2021 ORDER Entitlement to an earlier effective date regarding the eligibility for additional compensation for dependent S.P. based on school attendance is granted effective June 1, 2013. FINDING OF FACT 1. February and March 2013 rating decisions granted the Veteran’s claims for service connection and assigned initial ratings for these disabilities. The resulting combined ratings were 80 percent, effective September 2, 2012. 2. In the February 2013 notification letter, the Veteran was informed that S.P. was added as a dependent stepchild and that there would be a minor child adjustment on May [REDACTED], 2013, the date of S.P.’s eighteenth birthday. 3. In the March 2013 notification letter, the Veteran was informed that he may be eligible for additional benefits based on dependency. 4. In October 2013, within a year of the issuance of the qualifying rating decisions, the Veteran provided evidence of a dependent child in school. 5. S.B. is the Veteran’s stepchild, and during the period on appeal, was between the ages of 18 and 23 and attending a VA-approved educational institution. CONCLUSION OF LAW The criteria for an effective date of May 13, 2013, and no earlier, for the addition of the Veteran’s dependent child S.B. being over 18 and enrolled in a VA-approved educational institution are met; additional compensation for S.B. is resumed June 1, 2013. 38 U.S.C. § 1115, 5110(f); 38 C.F.R. § 3.31, 3.57, 3.155, 3.401. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1999 to September 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 administrative decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified before the undersigned. The Veteran asserts that he submitted evidence and a timely request to have S.B. added as a child, who, after reaching the age of 18 years was pursuing a course of instruction at an educational institution approved by the Department of Veterans Affairs. See April 2012 VA Form 21-686c, October 2013 Veteran lay statement, October 2015 Intent to File, April 2016 VA Form 21-674, June 2016 Veteran lay statement, March 2017 VA Form 21-674. The Board agrees. Initially, the Board notes that on March 24, 2015, the VA regulations were changed and prescribed forms, such as VA Forms 21-686c and 21-674, were required in order to file a claim for benefits. Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, was considered an informal claim. An informal claim need only identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form must be forwarded to the claimant for execution in order for a one-year time period to toll. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (as in effect prior to March 24, 2015). If no such form is supplied by VA, the informal claim remains pending. Any veteran who is entitled to compensation, and whose disability is rated not less than 30 percent, shall be entitled to additional compensation for a spouse and any dependent child. 38 U.S.C. § 1115. For VA purposes, a child means an unmarried person who is a legitimate child, a child legally adopted before the age of 18 years, a stepchild who acquired that status before the age of 18 years and who is a member of a veteran’s household or was a member of a veteran’s household at the time of such veteran’s death, or an illegitimate child. The “child” must also be: (1) under the age of 18 years; or (2) before reaching the age of 18 years became permanently incapable of self-support; or (3) after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101(4); 38 C.F.R. § 3.57 (a). Regarding additional compensation for dependents, the effective date will be the latest of the following dates: (1) date of claim; (2) date the dependency arises; (3) effective date of the qualifying disability rating provided evidence of dependency is received within a year of notification of such rating action; or (4) date of commencement of a veteran’s award. See 38 C.F.R. § 3.401(b). The “date of claim” for additional compensation for dependents is the date of the veteran’s marriage or birth/adoption of a child, if evidence of the event is received within a year of the event; otherwise, the date notice is received of the dependent’s existence, if evidence is received within a year of notification of such rating action. See 38 C.F.R. § 3.401(b) (1). The earliest that the additional award of compensation for a dependent can occur is the first day of the month following the effective date. See 38 C.F.R. § 3.31. The Court of Appeals for Veterans Claims has held that entitlement to additional compensation for dependents under section 1115 is implicitly raised whenever a veteran has a disability rating of at least 30% and submits evidence of dependents. Cf. Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009). Sharp v. Shinseki, 23 Vet. App. 267, 272 (2009). This view is supported by the plain language of section 1115: once VA determined that the Veteran was “entitled to compensation at the rates provided in section 1114” and had a disability rating “not less than 30 percent,” the VA immediately notified him that he was “entitled to additional compensation for dependents” and the Veteran need only submit updated information about his dependents to receive it. 38 U.S.C. § 1115. The Sharp decision also held that in interpreting 38 U.S.C. § 5110(f), the effective date for additional compensation for dependents shall be the same as the date of the rating decision giving rise to such entitlement, irrespective of any previous grant of § 1115 benefits (emphasis added), if proof of dependents is submitted within one year of notice of the rating action. There can be multiple rating decisions that establish entitlement to additional dependency compensation. This conclusion construes the statutes in the light most favorable to the veteran. Sharp v. Shinseki, 23 Vet. App. 267, 268 (2009). Here, the Veteran has two avenues to an earlier effective date. By way of history, the Veteran submitted a VA Form 21-686c with his original claim for benefits. See April 2012 VA Form 21-4138, April 2012 VA Form 21-4138. In February 2012, the Veteran was granted service connection for multiple disabilities and assigned a combined rating of 80 percent effective September 2, 2012, the first day after the date he was discharged from active duty. Accordingly, the Veteran has been eligible for dependent pay since his discharge from active duty. 38 U.S.C. §§ 1115, 5110. In a February 2013 rating decision, the RO notified the Veteran that he was receiving dependent pay for his spouse and 2 children, one being S.P., the child in question. VA general counsel has advised that it is not unreasonable to assume that status as a member of a veteran's household, once established, will be considered as continuing. See VAOPGCPREC 61-90, Jul 18, 1990, Minor Stepchild Serving in Armed Forces as Member of Veteran’s Household. The Board will not disturb this favorable finding. See April 2012 VA Form 21-686c, Boxes 4A, 15A-15C; August 2012 VA Form 21-4138; March 2017 VA Form 21-674, Box 11B. Notably, the Veteran was discharged under a force reduction program known as the Enlisted Retention Board (ERB). At the time of his discharge, he received separation pay that resulted in a 100 percent reduction of his VA compensation pay from September 1, 2012 to September 1, 2014 for recoupment. See April 2013 VA Form 21-8947. In this regard, the Board notes that the RO failed to provide the Veteran with appropriate notice in May 2013 when it reduced the Veteran’s dependency pay when S.P. reached the age of majority. See 38 C.F.R. § 3.103(b)(3)(i) (requiring written notice to the beneficiary or his or her fiduciary at the same time it takes an adverse action). While the February 2013 notification letter indicated a minor child adjustment in May 2013, the Board finds that the notification letter of the rating decision is insufficient notice as it was not issued contemporaneously (at the same time) with the reduction. Moreover, as the Veteran was receiving no VA compensation due to recoupment, he would not have been under constructive notice in the form of a reduced payment. Notably, there is no letter in the file regarding a reduced level of recoupment implicating the loss of a dependent allotment and the Veteran’s request for an audit of his recoupment went unanswered. See June 2016 request for audit. Thus, S.P. was improperly removed from dependency status, as inadequate notice was provided. In March 2013, the RO granted service connection for additional disabilities and assigned rating, the combined rating remained 80 percent. In its March 2013 rating decision, the RO informed the Veteran he may eligible for additional dependency pay. In response, in October 2013, the Veteran informed the RO that he was paying for the school of his child and sought relief in the form of either additional pay or a reduction in his recoupment rate. See October 2013 Veteran Correspondence. Pursuant to Sharp, the Veteran provided the information requested in the March 2013 notification letter and the RO took no action until it issued the April 2016 administrative decision on appeal. Thus, the Board finds that the Veteran, within one-year of the issuance of a qualifying rating decision, submitted updated information about his dependents, specifically that he was paying for the school of a child. In this regard, the Veteran supplied the name of the school in his April 2016 VA Form 21-674 and the school was approved by the RO. In response to the November 2016 Statement of the Case, wherein the Veteran was requested to supply the name of the school listed in section 11B in his April 2016 VA Form 21-674, the Veteran reported in the subsequent March 2017 VA Form 21-674 that the school listed was S.P.’s public high school. Accordingly, the VA previously determined that S.P. was a child pursuant to 38 C.F.R. § 3.57, requested additional information regarding the Veteran’s dependents in the March 2013 notification letter regarding a qualifying rating decision, the Veteran supplied that information within one year, and the RO took no action until April 2016, the Board finds that the Veteran is entitled an earlier effective date of June 1, 2013 is warranted, which is the first day of the month after the date the entitlement arose (May 13, 2013). See Sharp, supra; see also 38 C.F.R. §§ 3.31, 3.401(b). Likewise, the Board finds that the October 2013 lay statement also served as an informal claim as the Veteran specifically requested compensation for the payment of his child’s college education. As the RO never addressed this as a claim until the Veteran subsequently submitted the April 2016 VA Form 21-674, his claim remained pending the entire time. 38 C.F.R. § 3.155 (2013). The Board stresses that in awarding this benefit, the Veteran will be required to supply adequate evidence, as determined by the RO, to support disbursal of the compensation to which this decision entitles him, such as transcripts, certification letters of attendance, etc., showing that S.P. was a full time student pursuing a course of instruction at an educational institution approved by the Department of Veterans Affairs. 38 C.F.R. § 3.57. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Rouse, Associate 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.