Citation Nr: 24005166 Decision Date: 02/01/24 Archive Date: 02/01/24 DOCKET NO. 18-41 711A DATE: February 1, 2024 ORDER Entitlement to an effective date earlier than August 18, 2014, for the addition of M.W. to the Veteran's award as a school-aged child is denied. FINDINGS OF FACT 1. M.W. is the Veteran's child who attained age 18 in August 2013. 2. M.W. was attending high school on a full-time basis through summer 2014. 3. After M.W.'s high school graduation, she began attending a full-time course of study at a Department of Veterans Affairs (VA) approved university on August 18, 2014. 4. The first instance VA received a claim for additional dependency compensation for M.W. based on her school attendance between the ages of 18 and 23 was on January 9, 2015. CONCLUSION OF LAW The criteria for the addition of M.W. to the Veteran's award prior to August 18, 2014, based on her school attendance between the ages of 18 and 23, have not been met. 38 U.S.C. §§ 1115, 5110(f); 38 C.F.R. §§ 3.4, 3.57, 3.401(b), 3.667. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from November 1984 to November 2004. This matter comes before the Board of Veterans' Appeals (Board) from a May 2015 administrative decision that added M.W. to the Veteran's award as a school-aged dependent child effective August 18, 2014. He submitted a notice of disagreement to that decision and perfected his appeal to the Board, which issued a February 2023 remand for further development. The agency of original jurisdiction substantially complied with the Board's remand directives, and the appeal has been properly returned to the Board for further appellate consideration. Entitlement to an earlier effective date for the addition of M.W. to the Veteran's award as a school-aged child The Veteran's appeal centers around his claim for additional dependency compensation due to his daughter's school attendance between the ages of 18 and 23. This benefit is available to any veteran with dependents whose disability is rated not less than 30 percent. 38 U.S.C. § 1115. Adult children can qualify as dependents for these purposes if the child in question is between the ages of 18 and 23 who is pursuing a full-time course of instruction at an approved educational institution. 38 C.F.R. § 3.57(a)(iii). The record reflects that the Veteran has been in possession of a qualifying disability rating that would allow for additional dependency compensation beginning immediately after his discharge from active duty. 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 one year from those respective dates. The current claim for additional dependency compensation for M.W. was received by VA in January 2015. At that time, the Veteran indicated she had begun attending university on August 18, 2014. After VA granted his claim effective the commencement of her attendance at that university, the Veteran submitted a September 2015 notice of disagreement stating that M.W. had been attending school full-time from her August 2013 birthday when she attained age 18 through the date she was ultimately granted in September 2014. In the August 2018 substantive appeal, he clarified that claims were filed by his representative in December 2014 when it came to his attention that he had not been paid additional dependency compensation for M.W. after her eighteenth birthday. He added additional detail in August 2023 that M.W. had been attending high school from August 2013 until her attendance at university. The Veteran attached M.W.'s high school transcript at that time confirming that she had been attending high school through the 2013/2014 school year. The Board recognizes that M.W. was a full-time student from the date of her eighteenth birthday through her high school graduation and continued on a full-time basis upon her enrollment in university. However, the law is clear regarding effective dates regarding the addition of school-aged children to veterans' awards and involves a two-fold determination. First, the Board must determine whether the claim for this benefit was received within a year of the child's eighteenth birthday. If it was not, the Board must determine whether the claim was received within a year of the initiation of a course of study at an approved educational institution. The Veteran contends that his claim was submitted in December 2014. That is the date that it appears he signed his VA Form 21-686c (Declaration of Status of Dependents). It appears, however, that VA received that claim in January 2015. Regardless of that small date discrepancy, even if VA had received that claim the date the Veteran had signed it in December 2014, that date was more than a year after M.W.'s eighteenth birthday. Accordingly, the Board is precluded as a matter of law from assigning her eighteenth birthday as the effective date to the addition of M.W. to his award. The record is also clear that M.W. began her course of study in university on the current effective date in August 2014. Her course of study in high school is distinct from her university course of study and began more than a year prior to the date of receipt of his claim for dependency compensation for M.W. The Board therefore must find that the current effective date of August 2014 is the earliest possible effective date for dependency compensation for M.W. The clear weight of the evidence is against his appeal, and it must be denied. M. Tenner 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.