Citation Nr: 21025445 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 19-07 035 DATE: April 28, 2021 ORDER The issue of entitlement to recognition of H.K. as the dependent child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 is dismissed as moot. FINDING OF FACT In a June 2020 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) found that H.K.—the Veteran and Appellant’s son—was permanently incapable of self-support prior to his 18th birthday. CONCLUSION OF LAW The Board has no jurisdiction to adjudicate the merits of the issue of recognizing H.K. as a dependent child on the basis of permanent incapacity for self-support prior to attaining the age of 18; the issue is dismissed as moot. 38 U.S.C. §§ 7104(a), 7105(d); 38 C.F.R. § 20.104(c). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1967 to July 1970 in the United States Army. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision of the VA RO in Honolulu, Hawaii. In June 2019, the Veteran died. Thereafter, on August 2019, the Board dismissed the appeal regarding recognizing his son, H.K., as a dependent based on permanent incapacity for self-support prior to attaining the age of 18. In the August 2019 dismissal, the Board noted that an eligible person could file a request to be substituted as the appellant for the purposes of processing the appeal to its completion. In May 2020, the Veteran’s surviving spouse filed a claim for death benefits. The Agency of Original Jurisdiction (AOJ) also interpreted the surviving spouse’s claim as a request for substitution. This request was granted in January 2021. Accordingly, as the Veteran’s surviving spouse had been recognized as the substitute party for appellate purposes, the Veteran’s appeal pertaining to recognizing H.K. as a dependent was returned to the Board. Recognizing H.K. as a Dependent Generally, 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). Prior to his passing in June 2019, the Veteran had been in receipt of at least a 30 percent rating for his service-connected disabilities since October 18, 2011. As such, the 30 percent eligibility threshold established in 38 C.F.R. § 3.4(b) is satisfied in the instant case. Moving beyond this initial threshold determination, the Board notes that the Appellant is seeking dependent pay for her son H.K. The record indicates that H.K. was born on January [REDACTED], 1974 and turned 18 years old on January [REDACTED], 1992. See, e.g., Birth Certificate received May 2, 2020. A child of a veteran generally 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. The record does not indicate that H.K. is currently married, and the Appellant has contended that H.K. should be recognized as a dependent due to helpless child status. Prior to addressing the merits of the Appellant’s appeal, the Board notes that, in June 2020, a VA RO issued a rating decision recognizing H.K. as a dependent based on helpless child status. This June 2020 rating decision appears to be a full grant of the issue currently on appeal. The Board has jurisdiction in all matters where there is a question of law or fact necessary for a decision by the Secretary under a law that affects the provision of benefits to veterans or their dependents or survivors. 38 U.S.C. § 7104; 38 C.F.R. § 20.104. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105; 38 C.F.R. § 20.104(c). Accordingly, in the instant case, the Board finds the issue of entitlement to recognizing H.K. as a dependent based on helpless child status to be moot as the benefit sought on appeal has already been granted. See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). Because there remains no case or controversy concerning this issue, the issue is dismissed. 38 U.S.C. § 7105(d)(5). In dismissing the current appeal, the Board notes that, on August 24, 2020, the Appellant filed a VA Form 20-0995, Supplemental Claim Application, seeking an earlier effective date for the addition of H.K. as a dependent. The Board may not currently address the earlier effective date issue as it is a “downstream issue.” Indeed, by filing a supplemental claim, the Appellant has initiated a separate claim under the new, Appeals Modernization Act (AMA), system of appeals. Accordingly, the Board at this time directs the AOJ to adjudicate the Appellant’s supplemental claim, received on August 24, 2020, regarding entitlement to an earlier effective date for the recognition of H.K. as a dependent. 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.