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