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postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn. 38 C.F.R. § 20.702 (d) (2005). Accordingly, this appellant's request for a hearing is considered withdrawn.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