Citation Nr: 21023759 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-46 363 DATE: April 21, 2021 ORDER Entitlement to recognition of H.L.B. as the Veteran’s “child” for the purpose of additional dependency compensation for a child between the ages of 18 and 23 attending a full-time course of instruction at an approved educational institution is granted for the period beginning August 14, 2013, and no earlier. FINDINGS OF FACT 1. H.L.B. is the Veteran’s stepchild and was born on October [REDACTED], 1994. 2. H.L.B. began a course of instruction at an approved educational institution on August 14, 2013. 3. The Veteran submitted a claim for additional dependency compensation for H.L.B. on August 7, 2014, in which he reported that she was 18 to 23 years of age and in school. 4. The Department of Veterans Affairs (VA) sent the Veteran correspondence in June 2015 seeking additional information regarding H.L.B.’s schooling. 5. In October 2015, the Veteran provided additional information regarding H.L.B.’s education but did not include the precise form requested in the June 2015 correspondence. 6. In February 2017, the Veteran submitted VA Form 21-674 (Request for Approval of School Attendance) in which he provided additional information regarding H.L.B.’s education. CONCLUSION OF LAW The criteria for an effective date of August 14, 2013, and no earlier, for recognition of H.L.B. as the Veteran’s school-aged dependent child have been met. 38 U.S.C. §§ 1115, 5110; 38 C.F.R. §§ 3.4, 3.204, 3.216, 3.401, 3.667. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from November 1988 to December 1988 and from February 2008 to May 2013. H.L.B. is his stepdaughter. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2017 decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). That decision added H.L.B. to the Veteran’s award as a dependent school-aged child effective August 1, 2016, based on her attendance at community college. The Veteran appealed the effective date and appeared at a videoconference hearing before the undersigned Veterans Law Judge in July 2020. A transcript of the hearing has been associated with the claims file. Entitlement to an earlier effective date for recognition of H.L.B. as the Veteran’s dependent school-aged child Legal Standard Any veteran who is entitled to disability compensation, and whose disability is rated not less than 30 percent, is entitled to additional compensation for dependents, including for a spouse. See 38 U.S.C. § 1115; 38 C.F.R. § 3.4(b)(2). The Veteran has been in possession of a disability rating higher than 30 percent for the entire appeal period. However, the Board is also bound by the laws and regulations governing the effective dates of recognition of spouses and children for purposes of additional dependency compensation. When determining the effective date for an award of additional compensation for dependents, the effective date will be the last of the following dates: (1) the date of claim; (2) the date the dependency arises; or (3) date of commencement of the veteran’s award. 38 C.F.R. § 3.401(b). The “date of claim” for additional compensation for a dependent child is the date of birth or adoption or attainment of stepchild status, if evidence of the event is received within a year of the event or if that evidence is received within a year of a veteran’s notification that a disability rating of 30 percent or higher is awarded. 38 U.S.C. § 5110; 38 C.F.R. § 3.401(b). Otherwise, the date of claim is the date that notice is received of the dependent’s existence. Id. Under 38 U.S.C. § 5101(a), a specific claim must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See also 38 C.F.R. § 3.151(a). The Secretary has authority to prescribe the nature and extent of the proof required in order to establish a right to VA benefits. See 38 U.S.C. § 501. VA’s regulations include additional information regarding effective dates for school-aged children. Pursuant to 38 C.F.R. § 3.667(a)(1), if the additional compensation or pension sought is based on attendance of a child at an approved educational institution at the time of the child’s 18th birthday, benefits may be paid from the date of the 18th birthday if the claim for that additional compensation or pension was filed within a year of that date. However, when the additional pension or compensation is based upon a course of instruction at an approved educational institution which was begun after a child’s 18th birthday, payment may be paid from the commencement of the course provided that the claim is filed within a year of the date of that commencement of education. 38 C.F.R. § 3.667(a)(2). If a claimant’s application for a benefit under the laws administered by the Secretary is incomplete, the Secretary shall notify the claimant and the claimant’s representative, if any, of the information necessary to complete the application. 38 U.S.C. § 5102(b). If information that a claimant and the claimant’s representative, if any, are notified under subsection (b) is necessary to complete an application is not received by the Secretary within one year from the date such notice is sent, no benefit may be paid or furnished by reason of the claimant’s application. 38 U.S.C. § 5102 (c). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. 38 U.S.C. § 5107(a). VA will accept, for purposes of determining entitlement to benefits under laws administered by VA, the statement of a claimant as proof of marriage, dissolution of a marriage, birth of a child, or death of a dependent, provided that the statement contains: the date (month and year) and place of the event; the full name and relationship of the other person to the claimant; and the social security number of the other person. 38 U.S.C. § 5124; 38 C.F.R. § 3.204. Regardless of the regulation governing effective dates of awards, payment of monetary benefits based on compensation begins the first day of the month following the effective date. 38 C.F.R. § 3.31. Analysis Here, H.L.B. has already been determined to be the Veteran’s stepdaughter for all relevant periods. As noted above, she was also added to his award as a dependent school-aged child effective August 1, 2016, based on her attendance at Pima Community College. The question before the Board is whether the criteria for an even earlier effective date have been met for her attendance at that school. The Veteran contended in his notice of disagreement that he never received a notification letter of his award of additional dependency compensation in August 2015. In his hearing with the Board, he stated that he had resubmitted paperwork on numerous occasions directly with a VA representative and was informed that his paperwork was acceptable. For the reasons described in this decision, the Board finds that the criteria to recognize H.L.B. as his “child” have been met effective August 14, 2013, and no earlier. The Veteran’s claim for additional dependency compensation for H.L.B. based on her attendance at Pima Community College first began in July 2013. At that time, a VA employee memorialized a telephone conversation with the Veteran in which he reported her attendance at this institution with an expected graduation date of June 2017. Later that month, he submitted a VA Form 21-686c (Declaration of Status of Dependents), which is a form prescribed by the secretary for seeking additional dependency compensation. There, he reported that H.L.B. resided with him and was currently attending Pima Community College. Although he appeared to state in the July 2013 telephone call and in the July 2013 VA Form 21-686c that she was attending school at that time, he clarified in a VA Form 21-674 (Request for Approval of School Attendance) received in February 2017 that she actually began her course of instruction on August 14, 2013. The Veteran submitted an additional VA Form 21-686c in which he again reported that H.L.B. was a school-aged dependent on August 7, 2014. In response to these forms and claims, VA sought additional information from the Veteran regarding her education in correspondence from June 2015. There, VA asked him to complete VA Form 21-674 as well as information regarding the dates she attended school after her 18th birthday as well as the date of her anticipated graduation. While the Veteran did not complete that specific form and submit it to VA in the year that followed, he did submit additional information regarding H.L.B.’s attendance at Pima Community College in October 2015, to include class schedules. VA again sought additional information regarding H.L.B.’s education in correspondence in December 2016 that was returned to VA by the United States Postal Service as undeliverable. Finally, in February 2017, the Veteran submitted a VA Form 21-674 that included H.L.B.’s dates of instruction at Pima Community College. The form clarified that she had begun school on August 14, 2013. In applying these facts to the applicable laws and regulations regarding the effective dates regarding additional dependency compensation, the Board notes at the outset that there appears to be some ambiguity with respect to which regulation specifically applies. The general rule for effective dates for additional dependency compensation set forth at 38 C.F.R. § 3.401(b)(ii) would appear to weigh against a finding that an earlier effective date is warranted. That regulation allows for an effective date to coincide with a date of notice of a dependent’s existence “if evidence is received within 1 year of the Department of Veterans Affairs request.” As noted above, VA asked the Veteran to complete a VA Form 21-674 in its July 2015 correspondence, to include the dates of her attendance at an approved educational institution. Although some relevant educational information was provided within a year of that request, the specific form requested at that time was not included. At first glance, these facts would appear to suggest that § 3.401(b)(ii) would therefore not apply and a new claim for additional dependency benefits would be required. Notwithstanding the provisions of § 3.401(b)(ii), the Board notes that 38 C.F.R. § 3.667(a)(2) is also directly applicable. This regulation explicitly and specifically governs the effective dates for dependency compensation for school-aged children and specifically allows for such an effective date to coincide with the commencement of the course of study if “a claim” is filed within one year. Here, the Board finds that the most probative evidence regarding H.L.B.’s commencement of a course of study at Pima Community College is the February 2017 VA Form 21-674 that contains a specific start date (i.e. August 14, 2013). Although he had previously stated in July 2013 that she was a current student, the claims file includes no evidence of a specific start date earlier than August 14, 2013. This commencement was after H.L.B.’s eighteenth birthday. Pursuant to 38 C.F.R. § 3.667(a), because the Veteran submitted an August 2014 VA Form 21-686c within a year of that date and because he has submitted all relevant information regarding the nature of her course of instruction while the claim remained pending, it would appear that August 14, 2013, is the appropriate effective date to add H.L.B. to his award as a dependent, school-aged stepchild. It is important to note at this juncture, that the VA adjudication system is non-adversarial in nature. As to the complexity of forms needed for the filing of certain claims, the United States Court of Appeals for the Federal Circuit noted “[t]he VA disability compensation system is not meant to be a trap for the unwary, or a stratagem to deny compensation to a veteran who has a valid claim, but who may be unaware of the various forms of compensation available to him.” Comer v. Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009). Here, the Board finds that the provisions of 38 C.F.R. § 3.667(a) have been triggered. As the Veteran submitted a claim for additional dependency compensation for H.L.B. within a year of her commencement of a course of study at Pima Community College, the proper effective date to add her to his award is the date of commencement. The appeal is therefore granted and the criteria to recognize H.L.B. as his dependent school-aged stepchild have been met effective August 14, 2013, and no earlier. In making this determination, the Board recognizes that there are various references to H.L.B.’s attendance at a high school prior to her attendance at Pima Community College. VA has made requests to the Veteran to provide a complete statement regarding all of H.L.B.’s school attendance beginning on her 18th birthday, to include in the June 2015 letter. He has not yet provided sufficient information regarding that school attendance. As such, the Board cannot find that an earlier effective date for additional compensation for H.L.B. based on her attendance at a high school after the age of 18 have been met. G. A. WASIK 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.