Citation Nr: 0813791 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 07-08 624 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to Dependents' Educational Assistance (DEA) under Chapter 35, Title 38, of the United States Code. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hughes, Counsel INTRODUCTION The veteran served on active duty from April 1942 to December 1945. He was held captive as a German Prisoner of War (POW) from April 1944 to April 1945. He died in May 2006. The appellant is his daughter. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2002 determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. That decision found that the appellant was not eligible for payment of DEA benefits. The appellant has perfected a timely appeal of the October 2002 decision. The appellant appeared at a Travel Board hearing before the undersigned Acting Veterans Law Judge in October 2007. A copy of the transcript is of record. FINDINGS OF FACT 1. The appellant was born in October 1959 and is the daughter of the veteran. 2. The veteran died in May 2006. 3. In September 2006, the RO received the appellant's Application for Survivors' and Dependents' Educational Assistance. CONCLUSION OF LAW The criteria for eligibility for entitlement to DEA benefits under the provisions of Title 38, Chapter 35, United States Code, have not been met. 38 U.S.C.A. §§ 3501, 3512, 5107 (West 2002); 38 C.F.R. §§ 21.3040(c), 21.3041 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION In Chapter 35 of Title 38, Congress authorized post-secondary educational assistance benefits for, inter alia, "a child of a person who ... has a total disability permanent in nature resulting from a service-connected disability, or who died while a disability so evaluated was in existence." 38 U.S.C.A. §§ 3501(a)(1). In this case, a rating decision dated in June 2006 established service connection for the cause of the veteran's death as well as basic eligibility for benefits under Chapter 35 of Title 38. The provisions of 38 U.S.C.A. § 3512(a) restricts the payment of educational benefits to "the period beginning on the person's eighteenth birthday, or on the successful completion of the person's secondary schooling, whichever first occurs, and ending on the person's twenty-sixth birthday." The provisions of 38 C.F.R. § 21.3041(d) provide for exceptions which extend the qualifying period. A modification of the eligibility period may be granted if the veteran-parent died between the child's 18th and 26th birthdays. In such cases, the basic ending date for eligibility will be the child's 26th birthday or 8 years from the date of the relevant occurrence, whichever is later. However, in no case will the modified ending date extend beyond the eligible person's 31st birthday. 38 C.F.R. § 38 C.F.R. § 21.3041(d). The appellant argues that an exception to the age requirement for DEA benefits is warranted in her case because she was not aware of such benefits until she was helping her mother complete the application for Dependency and Indemnity Compensation (DIC) benefits after the death of her father. She further states that she was advised by VA personnel to apply for DEA benefits because the age requirements can sometimes be "waived." The appellant's VA Form 22-5490, Application for Survivors' and Dependents' Educational Assistance, reflects that she was born in October 1959. Thus, her 26th birthday was in October 1985, which was prior to the veteran's death in May 2006. For this reason, the Board finds that the criteria for a "modified" ending date are not met and that eligibility for educational benefits under the provisions of Title 38, Chapter 35, United States Code, have not been met. See 38 U.S.C.A. §§ 3500, 3501(a)(1); 38 C.F.R. § 21.3041. The appellant's 26th birthday had already past when the veteran died and the Board finds that there are no other possible circumstances indicated under which the delimitating date could be modified or extended. 38 C.F.R. § 21.3041(d), (e). While the Board is very sympathetic to the appellant, both the Board and the appellant are bound by the law, and this decision is dictated by the relevant statutes and regulations. Moreover, the Board is without authority to grant benefits simply because the result may appear to be equitable. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). It is further observed that "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." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). In summary, the Board finds that the appellant had reached her 26th birthday prior to the date of the veteran's death. Therefore, the appellant's claim for basic eligibility for entitlement to DEA benefits under the provisions of Title 38, Chapter 35, United States Code must be denied as a matter of law. Where, as here, the law and not the evidence is dispositive of the issue before the Board, the claim is denied because of the absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Moreover, the notice and duty to assist provisions of the Veterans Claims Assistance Act (VCAA) have no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive in a matter. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). ORDER Eligibility for payment of DEA benefits under Chapter 35, Title 38, United States Code is denied as a matter of law. _______________________________________________ Theresa M. Catino Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs