Citation Nr: 0811017	
Decision Date: 04/03/08    Archive Date: 04/14/08

DOCKET NO.  05-17 793A	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs Regional Office in New 
Orleans, Louisiana



THE ISSUE

Entitlement to educational assistance benefits under Chapter 
35, Title 38, United States Code (Dependents' Educational 
Assistance Program), after December 1997. 



ATTORNEY FOR THE BOARD

B. Buck, Associate Counsel




INTRODUCTION

The veteran served on active duty from November 1969 to 
November 1971 and from July 1972 to December 1975.  The 
appellant is the veteran's stepchild from a previous 
marriage.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a September 2004 decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
New Orleans, Louisiana, which found that the appellant was 
not entitled to the benefits which she had been previously 
receiving under Chapter 35.  The appellant filed a timely 
appeal with respect to this decision.

The appellant was scheduled for a personal hearing before the 
Board in January 2008, however she failed to appear.  Under 
the applicable regulation, if an appellant fails to appear 
for a scheduled hearing and a request for postponement has 
not been received and granted, the case will be processed as 
though the request for a hearing had been withdrawn.  
38 C.F.R. § 20.702 (d) (2005).  Accordingly, this appellant's 
request for a hearing is considered withdrawn.

FINDING OF FACT

The appellant was born in June 1977.  In March 1985, the 
appellant's mother married the veteran.  They divorced in May 
1997, and the appellant ceased being a member of the 
veteran's household in December 1997.

CONCLUSION OF LAW

The criteria for educational assistance benefits pursuant to 
Chapter 35 of Title 38 of the United States Code were not met 
after December 1997.  38 U.S.C.A. § 3500, 3501, 3512 (West 
2002 & West Supp. 2007); 38 C.F.R. §§ 3.57, 3.807(d), 
21.3021, 21.3040, 21.3041 (2007).
REASONS AND BASES FOR FINDING AND CONCLUSION

As a preliminary matter, the Board notes that the agency of 
original jurisdiction has a duty to notify and assist the 
claimant under 38 U.S.C.A. § 5103 (West 2002) and 38 C.F.R. 
§ 3.159 (2007).  It does not appear, however, that these 
duties are applicable to claims such as the one decided 
herein.  Cf. Barger v. Principi, 16 Vet. App. 132 (2002).  In 
Barger, the Court of Appeals for Veterans Claims held that 
these expanded duties are not applicable to cases involving 
the waiver of recovery of overpayment claims, pointing out 
that the statute at issue in such cases was not found in 
Title 38, United States Code, Chapter 51.  As well, the 
statutes at issue in this matter are not found in Chapter 51 
(but rather, in Chapter 35).

For the purposes of educational assistance under Chapter 35, 
the child of a veteran will have basic eligibility if the 
veteran was discharged from service under conditions other 
than dishonorable and the veteran has a permanent total 
service-connected disability.  38 U.S.C.A. §§ 3501, 3510, 
3512; 38 C.F.R. §§ 3.807(a), 21.3021, 21.3030, 21.3040, 
21.3041.  The veteran in this case has two honorable 
discharges and has a permanent and total service-connected 
disability. 

Pursuant to § 3.807 (d), a "child" is described as a son or 
daughter of a veteran who meets the requirements of § 3.57, 
except as to age and marital status.  38 C.F.R. 
§§ 3.807, 21.3020, 21.3021.  The definition of the term 
"child," as defined for VA purposes, includes a stepchild 
who acquired that status before the age of 18 years and who 
is a member of the veteran's household.  38 U.S.C.A. § 
101(4); 38 C.F.R. § 3.57(a).  

The relevant facts are not in dispute.  The appellant was 
born in June 1977.  She became the veteran's stepchild in 
March 1985, at the age of seven, when her natural mother 
married the veteran.  She therefore qualified as the 
veteran's "child" under the governing regulations and 
became eligible for education benefits.  

The basic beginning date of an eligible child's period of 
eligibility is her 18th birthday or successful completion of 
secondary schooling, whichever occurs first.  The basic 
ending date (delimiting date) is the eligible person's 26th 
birthday.  38 U.S.C.A. § 3512(a); 38 C.F.R. § 21.3040(a), 
(b), (c).

The basic ending date may be modified if certain 
circumstances occur between the eligible person's 18th and 
26th birthdays.  Specifically, the child may lose eligibility 
through ceasing to be the veteran's stepchild either because 
the veteran and the child's natural or adoptive parent 
divorce or because the veteran and the child's natural or 
adoptive parent separate and the child is no longer a member 
of the veteran's household.  38 U.S.C.A. § 3512; 38 C.F.R. § 
21.3041(d)(9).  In no case will the modified ending date 
extend beyond the eligible person's 31st birthday.  38 
U.S.C.A. § 3512(a); 38 C.F.R. § 21.3040(d).

In this case, the veteran and the appellant's natural mother 
divorced in May 1997, when the appellant was 19 years of age.  
A dated copy of the divorce order is of record.  At the 
request of the RO in conjunction with this appeal, the 
veteran submitted a statement in February 2005, confirming 
that the appellant ceased being a member of his household in 
December 1997.  He clarified that while he helped the 
appellant financially when she asked for it, he did not 
provide a percentage of support for her.  Thus, as of 
December 1997, the appellant ceased being the veteran's 
"child" for the purposes of VA benefits. 

Nevertheless, in May 2002, the appellant filed for 
educational assistance under Chapter 35 and was granted 
benefits, albeit erroneously.  The fact remains that the 
appellant was not eligible for those benefits.  While the 
Board does not doubt the sincerity of the appellant's 
statements concerning her continued relationship with the 
veteran after his divorce from her mother, it is bound by the 
regulations in place, including the governing legal 
definition of "child."  Under those regulations, the 
appellant is not eligible for Chapter 35 educational 
assistance.  
	
ORDER

Entitlement to educational assistance benefits under Chapter 
35, Title 38, United States Code (Dependents' Educational 
Assistance Program), after December 1997, is denied.



____________________________________________
J. A. MARKEY	
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs