Citation Nr: 0810383 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 06-00 52A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code, beyond June 24, 2005. ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. FINDINGS OF FACT 1. The appellant is the daughter of a veteran with a permanent and total rating. 2. The appellant received 45 months of charged DEA benefits between March 25, 1999 and June 24, 2005. 3. The evidence does not show that the appellant requires special restorative training. 4. The appellant has not requested an extension to pursue courses under the special assistance for the educationally disadvantaged program. CONCLUSION OF LAW The appellant is not entitled to DEA benefits beyond June 24, 2005. 38 C.F.R. §§ 3500, 3501, 3511 (West 2002 & Supp. 2006); 38 C.F.R. §§ 21.3020, 21.3021, 21.3044, 21.3300 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION On November 9, 2000, the President signed into the law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2006)). The VA General Counsel has held that the notice and duty to assist provisions of the VCAA are inapplicable where, as here, undisputed facts render a claimant ineligible for the benefit claimed and further factual development could not lead to an award. VAOPGCPREC 5-2004 (June 23, 2004). The appellant seeks to have her DEA benefits extended beyond June 24, 2005. She does not dispute that she has received 45 months of charged benefits nor does she allege that she wants or needs special restorative training. The appellant asserts that her degree requires an additional year of training, beyond the standard four years. Basic eligibility for Chapter 35 benefits is established in several ways, including being the child of a veteran who has a total disability permanent in nature resulting from a service-connected disability. See 38 U.S.C.A. § 3501(a)(1)(A); 38 C.F.R. § 21.3021. However, the issue in this case is not whether the appellant is eligible for Chapter 35 benefits, as the RO has already determined that the appellant is an eligible child under the applicable law and regulations as her father, the veteran, is in receipt of a total and permanent rating. See 38 U.S.C.A. § 3501; 38 C.F.R. § 21.3021. Rather, the issue that must be decided in this case is whether the appellant is entitled to Chapter 35 DEA benefits in excess of 45 months. Under the applicable law, DEA benefits are provided pursuant to Chapter 35, Title 38, United States Code, to certain qualifying dependents of certain classes of veterans, including children in specified classes. See 38 U.S.C.A. §§ 3501, 3512. Under applicable regulation, each eligible person is entitled to educational assistance not in excess of 45 months, or the equivalent thereof in part-time training. However, VA will not authorize an extension of entitlement except as otherwise provided by law. The 45-month period of entitlement is any 45 months within the period of eligibility, and the 45 month limitation may be exceeded only where no charge against the entitlement is made based on a course or courses pursued by a spouse or surviving spouse under the special assistance for the educationally disadvantaged program; or where special restorative training authorized under law exceeds 45 months. 38 U.S.C.A. § 3511(a); 38 C.F.R. §§ 21.3020(b), 21.3044(c), 21.3300(c). The appellant was awarded DEA benefits, commencing in March 1999. In 1999 and 2000, the appellant pursued a Bachelor of Arts degree at Louisiana State University. In August 2000, VA was notified that the appellant had enrolled at Loyola University where she was approved to utilize further DEA benefits. She later enrolled at Southeastern Louisiana University where she remained in attendance until 2004. In July 2005, a VA Form 22-5495, Request for Change of Program or Place of Training, was received from the appellant in which she indicated that she was seeking to complete a Masters in Special Education at California State University. An Enrollment Certification was received for enrollment from June 20, 2005 to September 3, 2005 for 15 credit hours. However, the record reflects that the appellant's Chapter 35 benefits were exhausted on June 24, 2005 as she had used her maximum entitlement of 45 months of DEA benefits. In the present case, the Board finds no basis in law for extending the appellant's receipt of DEA benefits beyond June 24, 2005. As previously stated, the law limits the amount of DEA benefits to which an eligible claimant is entitled. According to controlling legal criteria, educational assistance under Chapter 35 may not exceed a period of 45 months unless a longer period is required for special restorative training under the circumstances outlined in 38 C.F.R. § 21.3300(c), or except as specified in 38 C.F.R. § 21.3044(c). 38 U.S.C.A. § 3511; 38 C.F.R. § 21.3020(b). Under 38 C.F.R. § 21.3044(c)(1), an extension is allowable where no charge against the entitlement is made based on a course or courses pursued by a spouse or a surviving spouse under the special assistance for the educationally disadvantaged program. 38 C.F.R. § 21.3044(c)(1). Under 38 C.F.R. § 21.3044(c)(2), an extension is allowable where special restorative training authorized under 38 C.F.R. § 21.3300 exceeds 45 months. 38 C.F.R. § 21.3044(c)(2). The special assistance for the educationally disadvantaged program allows a claimant to pursue remedial, deficiency, or refresher courses, and depending on the nature of the program pursued, the VA may or may not make a charge against the eligible person's entitlement for that course. 38 C.F.R. §§ 21.3045, 21.3344. The evidence does not show that the appellant requires special restorative training. Thus, an extension in not warranted under the circumstances outlined in 38 C.F.R. § 21.3300(c), or as specified in 38 C.F.R. § 21.3044(c)(2). In addition, in light of the fact that the appellant is the veteran's daughter and not the spouse or surviving spouse of the veteran, an extension is also not warranted under 38 C.F.R. 21.3044(c)(1). Moreover, as the appellant has not requested an extension to pursue courses under the special assistance for the educationally disadvantaged program, it has not been necessary for the RO to determine whether a charge should be made against the appellant's entitlement. Accordingly, the aforementioned exception is inapplicable. In the instant case, the RO has determined that by June 24, 2005, the appellant had been awarded her maximum entitlement of 45 months of DEA benefits authorized by law. In this regard, the Board recognizes the appellant's assertions as to why additional DEA benefits should be awarded. However, her assertions do not fit within the narrowly defined circumstances under which more than 45 months of Chapter 35 DEA benefits may be awarded, and the Board is bound by the laws and regulations governing this issue. ORDER Entitlement to Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code, beyond June 24, 2005, is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs