Citation Nr: 21026634 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-06 211 DATE: May 3, 2021 ORDER Entitlement to recognition of K.D.N. as the Veteran's school-aged child, for the purposes of additional dependency compensation, is denied. Entitlement to an effective date of August 22, 2011, and no earlier, for recognition of K.F.N. as the Veteran's school-aged child, for the purpose of additional dependency compensation, is granted. FINDINGS OF FACT 1. K.D.N. is the Veteran's child and was born in June 1988. 2. K.D.N. began a course of study at an approved educational institution in September 2006 and graduated in June 2011. 3. The Veteran first submitted a written statement that could be considered a claim for additional dependency compensation based on K.D.N.'s school attendance in April 2012. 4. K.F.N. is the Veteran's child and was born in February 1993. 5. K.F.N. began a course of study at an approved educational institution on August 22, 2011. 6. The Veteran first submitted a written statement that could be considered a claim for additional dependency compensation based on K.F.N.'s school attendance in April 2012. CONCLUSIONS OF LAW 1. The criteria for recognition of K.D.N. as the Veteran's school-aged child, for the purposes of additional dependency compensation, have not been met. 38 U.S.C. §§ 1115, 5110; 38 C.F.R. §§ 3.4, 3.204, 3.216, 3.401, 3.667 2. The criteria for an effective date of August 22, 2011, and no earlier, for recognition of K.F.N. as the Veteran's school-aged child, for the purpose of additional dependency compensation, 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 CONCLUSIONS The Veteran served honorably on active duty in the United States Air Force from October 1978 to December 2002. K.D.N. and K.F.N. are his adult children. This matter comes before the Board of Veterans' Appeals (Board) from a November 2014 decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). That decision denied additional dependency compensation for K.D.N. and added K.F.N. to the Veteran's award as a school-aged dependent child effective January 9, 2012, with a payment date of February 1, 2012. The Veteran appealed the November 2014 decision and testified before the undersigned Veterans Law Judge (VLJ) at a virtual hearing in February 2021. A transcript of the hearing has been included in the claims file. Additional Compensation for Dependents 1. Entitlement to additional dependency compensation for K.D.N. 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 child between the ages of 18 and 23 who is pursuing a full-time course of instruction at an approved educational institution. See 38 U.S.C. § 1115; 38 C.F.R. §§ 3.4(b)(2), 3.57(a)(iii). Here, the record is clear that the Veteran has had a qualifying disability rating for the entire appeal period. When determining the effective date for an award of additional compensation for dependents, the effective date will be the last of the following dates provided that sufficient evidence is received: (1) the date of claim; (2) the date the dependency arises; (3) the effective date of the qualifying disability rating; or (4) the date of commencement of the veteran's award. 38 C.F.R. § 3.401(b). However, when the dependency award is based on school attendance by the child between the ages of 18 to 23, the provisions of 38 C.F.R. § 3.667 are applicable. That regulation clarifies that pension or compensation may be paid from a child's 18th birthday based upon school attendance if the child was at that time pursuing a course of instruction at an approved educational institution or, if the course began after a child's eighteenth birthday, from the commencement of the course of instruction if a claim is filed within 1 year from those respective dates. 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. The record reflects that K.D.N. was previously included in the Veteran's award as a dependent child under the age of 18. He was notified of this award in correspondence from February 2004, which also asked the Veteran to notify VA of any changes in the number or status of his dependents. A thorough review of the claims file, however, fails to uncover any evidence that the Veteran informed VA in writing of K.D.N.'s attendance at an approved educational institution until he submitted a VA Form 21-0538 (Status of Dependents Questionnaire) in April 2012. That form asked the Veteran to identify his spouse as well as any children who were in any of the following categories: under the age of 18, between the ages of 18 and 23 and attending school, or of any age and permanently disabled. The Veteran identified both K.D.N. and K.F.N. as children that fell into one of those categories. Based on these facts, the central questions before the Board are when K.D.N. became 23 years old, when he began a course of study at an approved educational institution, and when VA received a claim for additional compensation based on that school attendance. There is no dispute that K.D.N. was born in June 1988. As such, he turned 23 in June 2011. Accordingly, it is clear that the April 2012 claim was received after K.D.N. could no longer be considered a "child" pursuant to 38 C.F.R. § 3.57 absent a showing that he was permanently disabled. The Veteran has not contended, and the claims file includes no evidence whatsoever, that K.D.N. has been permanently incapable of self-support since the period prior to his attainment of age 18. However, as noted above, if a claim for additional dependency compensation based on school attendance is received within a year of the commencement of the course of study, then payment of additional dependency compensation may begin as of that date of commencement. After the April 2012 status of dependents questionnaire, the Veteran provided additional details regarding the dates of K.D.N.'s schooling in a December 2012 VA Form 21-674 (Request for Approval of School Attendance). There, he indicated K.D.N. had begun his studies at the University of Oregon in September 2006 and had graduated in June 2011. As the April 2012 receipt of the Veteran's claim for additional dependency compensation based on K.D.N.'s school attendance was received well over a year after K.D.N. commenced his studies in September 2006, the law simply does not allow VA to recognize him as a school-aged dependent. At the hearing, the Veteran contended that he was not aware that he needed to file a form to have K.D.N. added to his award as a school-aged child between the ages of 18 and 23. In his February 2016 substantive appeal, he sought a waiver of a deadline for submitting a claim and also indicated the laws regarding payment of dependency compensation during college attendance were not available to him. Finally, the representative argued in the August 2019 brief that a waiver should be granted due to inadequate notice of the reporting requirements of school-aged children either at discharge or when the Veteran first received a 30 percent disability rating. While the Board is sympathetic to the arguments of the Veteran and his representative, it is bound by the regulations and statutes governing VA benefits. It is also important to note that a beneficiary is charged with knowing the rules governing compensation. Dent v. McDonald, 27 Vet. App. 362, 382 (2015) (summarizing Jordan v. Brown, 10 Vet. App. 171, 174-75 (1997)). While the representative has argued that there was inadequate notice given to the Veteran regarding additional dependency compensation, the January 2004 notification letter that informed him of his grant of at least a 30 percent disability rating explicitly informed him that an additional form was required to obtain additional dependency compensation. Ultimately, the law simply does not allow for payment of additional compensation for school-aged children who are above the age of 23 when the claim for that benefit was received more than a year after the commencement of a course of study at an approved educational institution. 38 C.F.R. § 3.667. The arguments of the Veteran and his representative represent requests to grant benefits based on equity, which falls outside of the Board's jurisdiction. See 38 C.F.R. § 20.101; see also Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990) ("No equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress.")). Thus, the law is dispositive, and the Veteran's claim for additional dependency compensation for K.D.N. must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (indicating where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). 2. Entitlement to an earlier effective date for additional dependency compensation for K.F.N. While the Board has not been able to grant the Veteran's appeal regarding additional dependency compensation for K.D.N., it does find that the criteria for an earlier effective date for additional dependency compensation for K.F.N. have been met. In the same April 2012 status of dependents questionnaire that the Veteran notified VA that K.D.N. was between the ages of 18 and 23 and attending school, he also indicated that K.F.N. also meet those criteria. Unlike K.D.N., however, K.F.N. had not yet attained age 23 at the time of that form. He was born in February 1993 and his twenty-third birthday was therefore not until February 2016. As was the case with K.D.N., the Veteran subsequently provided a VA Form 21-674 regarding K.F.N.'s schooling in December 2012. There, he notified VA that K.F.N. had been attending the University of North Dakota since August 2011, with an expected graduation date in May 2015. This August 2011 commencement of K.F.N.'s course of study began after his eighteenth birthday. To allow for an effective date that coincides with that commencement date, VA's regulations require a claim for that benefit to be received within a year of that date. 38 C.F.R. § 3.667(a)(2). 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). While the Veteran did not submit the VA Form 21-674 within a year of K.F.N.'s commencement of his schooling at the University of North Dakota, he did submit the status of dependency questionnaire form. As explained above, that form explicitly asked for the Veteran to identify all children that could potentially be considered dependent children for the purpose of additional compensation, to include children between the ages of 18 and 23 attending school. At the time the Veteran submitted that form in April 2012, K.F.N. was within that age range and, in fact, the only category of "child" that K.F.N. may have qualified was either a school-aged child or a permanently disabled child. The Board therefore finds that that form represents a claim for additional dependency compensation based on K.F.N.'s classification as a "child" pursuant to 38 C.F.R. § 3.57, to include a child between the ages of 18 and 23 attending a course of study at an approved educational institution. The claim was clearly received within a year of August 22, 2011, when K.F.N. commenced that course of study. Accordingly, after resolving the benefit of reasonable doubt in favor of the Veteran, the Board finds that the criteria for an effective date of August 22, 2011, and no earlier, have been met to recognize K.F.N. as the Veteran's "child" for the purpose of additional dependency compensation. The appeal is granted to this extent only. M. HYLAND 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.