Citation Nr: 21023930 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 05-29 247 DATE: April 21, 2021 ORDER Entitlement to additional compensation for the Veteran’s daughter A., as a dependent school child, is granted for the period from August 14, 2005 to August 23, 2009. Entitlement to additional compensation for the Veteran’s stepdaughter Bri., as a dependent school child, is granted for the period from June 1, 2007 to January 17, 2011. Entitlement to additional compensation for the Veteran’s stepdaughter Bra. For the period after October [REDACTED], 2008 is denied. FINDINGS OF FACT 1. Since February 3, 2004, the Veteran has been in receipt of at least a combined 30 percent rating for his service-connected disabilities. 2. The Veteran’s daughter A. was born on November [REDACTED], 1986, turned 18 years old on November [REDACTED], 2004, and turned 23 years old on November [REDACTED], 2009. The evidence of record indicates that she began attending a post-secondary educational institution on or about August 14, 2005 and was in receipt of Chapter 35 education assistance beginning August 24, 2009. 3. The Veteran’s stepdaughter Bri. was born on April [REDACTED], 1989, turned 18 years old on April [REDACTED], 2007, and turned 23 years old on April [REDACTED], 2012. The evidence of record indicates that she began attending a post-secondary educational institution on or about June 1, 2007 and was in receipt of Chapter 35 educational assistance beginning January 18, 2011. 4. The Veteran’s stepdaughter Bra. was born on October [REDACTED], 1990, turned 18 years old on October [REDACTED], 2008, and turned 23 years old on October [REDACTED], 2013. The evidence of record does not demonstrate that she was pursuing a course of instruction at an approved educational institution between her 18th and 23rd birthdays. CONCLUSIONS OF LAW 1. The criteria for additional compensation for the Veteran’s daughter A., as a dependent school child, are met from August 14, 2005 to August 23, 2009. 38 U.S.C. §§ 1115, 5110, 5107; 38 C.F.R. §§ 3.4, 3.57, 3.102, 3.204, 3.667, 3.707, 21.3023. 2. The criteria for additional compensation for the Veteran’s stepdaughter Bri., as a dependent school child, are met from June 1, 2007 to January 17, 2011. 38 U.S.C. §§ 1115, 5110, 5107; 38 C.F.R. §§ 3.4, 3.57, 3.102, 3.204, 3.667, 3.707, 21.3023. 3. The criteria for additional compensation for the Veteran’s stepdaughter Bra. beyond October [REDACTED], 2008 are not met. 38 U.S.C. §§ 1115, 5110, 5107; 38 C.F.R. §§ 3.4, 3.57, 3.102, 3.204, 3.667, 3.707, 21.3023. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1978 to August 1982 and from March 1983 to March 1985. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 decision of a Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of the Veteran’s claims file currently resides with the St. Louis, Missouri RO. The above-identified dependency issues were previously before the Board in November 2016. On that occasion, the Board granted service connection for a right calcaneal spur, a right ankle strain, and right ankle degenerative joint disease; increased ratings for peripheral vascular disease and the right peroneal sensory nerve; and an effective date of January 23, 2004 for the grant of service connection for a right knee disability. The Board then remanded the Veteran’s appealed dependency issues as entitlement to additional compensation for A., Bri., and Bra. as dependents could have been affected by the Agency of Original Jurisdiction’s (AOJ) implementation of the issues granted by the Board. Following the Board’s November 2016 decision and remand, the AOJ issued a rating decision in February 2017. In light of the issues granted by the Board in November 2016, the Veteran had a combined disability rating of at least 30 percent beginning February 3, 2004. Thereafter, the Veteran’s dependency issues returned to the Board when, in May 2018, the Board remanded them again due to a lack of substantial compliance with the November 2016 remand directives. The case was remanded once again by the Board in February 2021. Additional Dependency Compensation for A., Bri., and Bra. If a veteran is entitled to compensation based on disability evaluated as 30 percent or more disabling, an additional amount of compensation may be payable for a spouse, child, and/or dependent parent.  See 38 C.F.R. § 3.4(b). As indicated above in the Findings of Fact section, the Veteran has been in receipt of at least a 30 percent combined disability rating since February 3, 2004. As such, the Board finds that the 30 percent eligibility threshold established by 38 C.F.R. § 3.4(b) is satisfied. Moving beyond this initial threshold issue, VA has already awarded the Veteran additional compensation for his dependent children A., Bri., and Bra. up until their 18th birthdays. See March 2021 VA Audit Report. However, the Veteran is seeking additional compensation for A., Bri., and Bra. beyond their 18th birthdays as dependent school children. As indicated above in the Conclusions of Law section, the Board grants the Veteran’s claim in part and awards additional compensation for A. from August 14, 2005 to August 23, 2009, and for Bri. from June 1, 2007 to January 17, 2011. However, the Board finds that additional compensation for Bra. beyond her 18th birthday is not warranted. In support of this determination, the Board first notes that, generally, a child—including a stepchild—of a veteran does not qualify as a dependent for VA purposes once he or she attains 18 years of age. However, an adult child of a veteran may be considered a “child” for dependency purposes if he or she is unmarried and (1) was permanently incapable of self-support by reason of mental or physical defect before reaching age 18—a “helpless child;” or (2) is between the ages of 18 and 23 and pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101(4)(A); 38 C.F.R. §§ 3.57, 3.315(a), 3.356, 3.667. Regarding his daughter A., the evidence of record indicates that, beginning August 14, 2005, less than 1 year following her 18th birthday, she began taking post-secondary courses at Colby Community College. See February 2016 Course Audit; February 2016 Transcript; June 2014 Transcript; February 2014 Correspondence. A. then continued her studies at the University of Nebraska at Kearney, Missouri State University, and the University of Central Missouri. However, effective August 24, 2009, A. began receiving Chapter 35 educational assistance. See March 2021 VA Audit. 38 C.F.R. § 3.667(f)(1) provides that pension, compensation, or dependency and indemnity compensation may not be authorized after a child has elected to receive educational assistance under 38 U.S.C. Chapter 35. Accordingly, in light of the above, the Board concludes that A. may be recognized as a dependent school child to the Veteran’s compensation award from August 14, 2005 until August 23, 2009, the day before she began receiving Chapter 35 educational assistance. Thus, to this extent, the Board grants the Veteran’s claim. Similarly, regarding his stepdaughter Bri., the evidence of record indicates that, following her 18th birthday on April [REDACTED], 2007, she began pursuing a course of instruction at an educational institution beginning in June 2007. See February 2012 Informal Claim. Specifically, as indicated in a copy of a transcript received in July 2012, Bri. was enrolled in courses through Southwest Baptist University beginning in the summer 2007 semester. Thereafter, in the fall of 2008, she began accumulating credits at Ozarks Technical Community College until December 2012. See March 2021 VA Audit. However, the record also indicates that Bri. elected to receive Chapter 35 educational assistance from January 18, 2011 to December 2012. While the Veteran was compensated for Bri. as a dependent school child from March 1, 2012 to April [REDACTED], 2012, Bri.’s choice to receive Chapter 35 educational assistance beginning January 18, 2011 bars her from being recognized as a dependent from January 18, 2011. See 38 C.F.R. § 3.667(f)(1). Accordingly, the Board concludes that the Bri. should be recognized as a dependent school child of the Veteran beginning June 1, 2007 until January 17, 2011. To this extent, the Veteran’s claim is granted. Lastly, regarding his stepdaughter Bra., the record indicates that she turned 18 years old on October [REDACTED], 2008 and 23 years old on October [REDACTED], 2013. In December 2011 correspondence, the Veteran did not indicate that Bra. had pursued a course of instruction at an educational institution following her 18th birthday. Similarly, in February 2012, the Veteran stated that Bra. had not registered for courses at a college or vocational school. While the Veteran did indicate that Bra. had graduated from high school in May 2009, he did not provide her exact date of graduation or other evidence indicating the date. Separate from the December 2011 and February 2012 lay statements, the Veteran did submit completed VA Forms 21-674, Request for Approval of School Attendance, for Bra. in August 2012 and February 2016. On both forms, the Veteran did not provide any information regarding (1) any educational institution Bra. attended, (2) the dates she began courses, or (3) her expected dates of graduation. Lastly, in March 2021, VA completed an audit regarding payments of Chapter 35 educational assistance to Bra. The audit indicated that while Bra. pursued courses at Vatterott College, her attendance began in September 2016—about 3 years after her 23rd birthday. In light of the above evidence, the Board concludes that a preponderance of the evidence is against finding that Bra. pursued a course of instruction at an educational institution following her 18th birthday up until the age of 23. Accordingly, the Board denies the Veteran’s claim for additional dependency compensation with respect to Bra. See 38 C.F.R. § 3.57(a). 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.