Citation Nr: 0814594 Decision Date: 05/02/08 Archive Date: 06/26/08 DOCKET NO. 06-03 505A DATE MAY 02 2008 On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Basic eligibility for Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code. ATTORNEY FOR THE BOARD Nancy Rippel, Counsel INTRODUCTION Administrative documentation maintained by the Department of Veterans Affairs (VA) indicates that the veteran served on active duty in the United States Marines from April 1970 to April 1972. The appellant in this case is the veteran's daughter. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 determination by the Muskogee, Oklahoma, Department of Veterans Affairs (V A) Regional Office (RO) that found the appellant ineligible for DEA benefits based on her age on the effective date of her father's award of permanent and total service-connected disability. FINDINGS OF FACT 1. Effective November 1,2004, the veteran was first awarded a permanent and total disability rating based on service- connected disability. 2. In July 2005, the appellant, who is the veteran's daughter, first filed a claim for Dependents' Educational Assistance benefits under Chapter 35. 3. The veteran's daughter was born in January 1978. 4. The appellant reached her 26th birthday in January 2004, prior to the effective date of a finding of permanent and total service-connected disability on behalf of the veteran. CONCLUSION OF LAW - 2 - The basic eligibility criteria for Dependents' Educational Assistance benefits under Chapter 35, Title 38, United States Code have not been met. 38 U.S.C.A. §§ 3501, 3512 (West 2002); 38 C.F.R. §§ 21.3021, 21.3040, 21.3041 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matters The Board notes that VA's duty-to-assist and notification obligations, set out in 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159(b), are not applicable to claims such as the one decided herein. Cf Barger v. Principi, 16 Vet. App. 132 (2002). In Barger, the United States Court of Appeals for Veterans Claims (Court) held that the Veterans Claims Assistance Act of2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096, with its expanded duties to notify and assist, is 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 Title 38, United States Code, Chapter 51 (i.e. the laws changed by VCAA). As well, the statute at issue is not found in Chapter 51 (rather, in Chapter 35). Regardless, in this case, the facts relevant to a complete evaluation of the claim, primarily the appellant's date of birth and the documented effective date of the veteran's award of a permanent and total disability rating, are not in dispute. Furthermore, the appellant was properly informed as to the laws and regulations governing entitlement to the benefits sought, the evidence considered, and the reasons and bases for the RO's decision in this matter. As discussed below, the appellant's arguments in favor of her entitlement to these benefits do not comport with governing law and regulations. Moreover, the appellant has not identified any additional evidence or argument that should be considered during V A's adjudication process regarding this claim. - 3 - In a case such as this, where the pertinent facts are not in dispute and the law is dispositive, there is no additional information or evidence that could be obtained to substantiate the claim. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Court has held that where the facts averred by a claimant cannot conceivably result in any disposition of the appeal other than affirmance of the Board decision, the case should not be remanded for development that could not possibly change the outcome of the decision. See Valiao v. Principi, 17 Vet. App. 229,231-32 (2003). Accordingly, the Board will now proceed to adjudicate the merits of this appeal. Analysis of the Claim The record reflects that the veteran was awarded a permanent and total disability rating based on service-connected disability as of November 2004. Records maintained by the VA unequivocally show this effective date. The appellant first filed her application for the receipt of DEA benefits under Chapter 35 in July 2005. In this application, she reported that she was the veteran's child. She also indicated that her date of birth was in January 1978. Basic eligibility for Chapter 35 benefits is established in one of several ways, including being the child of a veteran who has a total and permanent disability rating from a service-connected disability. 38 U.S.C.A. § 3501(a)(l)(A) (West 2002); 38 C.F.R. § 21.3021 (2007). The record confirms that the appellant is the veteran's daughter, and that the veteran is in receipt of a permanent and total disability rating. Eligibility for Chapter 35 benefits further requires, however, that the appellant must not reach her 26th birthday on or before the effective date of a finding of permanent and total service-connected disability. 38 C.F.R. § 21.3040(c) (2007) (emphasis added). The Board has carefully reviewed the record, and notes that it is undisputed - 4 - that the appellant reached her 26th birthday in January 2004, prior to the currently assigned November 2004 effective date of the veteran's permanent and total service-connected disability rating. Accordingly, and unfortunately, the appellant is simply not eligible for Chapter 35 educational assistance at this time. While she has indicated in her notice of disagreement submitted in September 2005 that the veteran sought and secured an earlier effective date of April 2003, there is no evidence of this in official VA records. Thus, this argument is not a basis to assign an earlier effective date. The official records maintained by the VA show an effective date of November 1,2004, for his permanent and total rating. Moreover, disagreement with the effective date reflected in the official V A records would be beyond the scope of this appeal. In addition, the appellant has not shown, nor is the Board aware, of any basis to exempt her from application of this regulation. For example, under 38 C.F.R. § 21.3041(a) (2007), the basic beginning date of eligibility for educational assistance is normally the date the child reaches age 18, or the date of the child's completion of secondary schooling, whichever occurs first. The basic ending date for educational assistance is the date of the child's 26th birthday. 38 C.F.R. § 21.3041(c) (2007). The beginning date for eligibility for benefits may be tolled if the effective date of the finding of permanent and total disability is prior to the child's 18th birthday, but the veteran does not receive notice of this rating until after the child becomes 18. 38 C.F.R. § 21.3041(b)(2)(i) (2007). Also, the beginning date may be extended if the permanent and total disability rating is assigned after the child reaches 18, but before the child turns 26. 38 C.F.R. § 21.3041(b)(2)(ii) (2007). As discussed earlier, however, the appellant turned 26 before the effective date of the finding of permanent and total disability of the veteran, and so neither of these exceptions to toll the basic beginning date for eligibility for educational assistance is applicable in her case. - 5 - The basic ending date for eligibility for educational assistance may also be tolled in certain situations. Under 38 C.F.R. § 21.3041(d)(2005), the ending date for eligibility for educational assistance may be modified for up to eight years beyond the qualifying event, but in no case beyond the date the child reaches age 31. The appellant refers to this situation in her substantive appeal dated in February 2006. In order to modify the ending date, however, the qualifying event must occur between the time the child reaches age 18 and when the child reaches age 26, and not thereafter. See 38 C.F.R. § 21.3041(d). In this case, the basic ending date for eligibility for educational assistance cannot be modified, again because the appellant had already reached the age of 26 at the time of the award of permanent and total disability to the veteran (in November 2004). While the Board is aware of the appellant's arguments and frustrations as stated in her documentation in support of this appeal, the regulatory criteria and legal precedent governing eligibility for the receipt of Chapter 35 educational assistance benefits are clear and specific, and the Board is bound by these criteria. 38 U.S.C.A. § 7104(c) (West 2002); 38 C.F.R. § 19.5 (2007). Therefore, the Board must find that the appellant is simply not eligible to receive educational assistance benefits under Chapter 35 as a matter oflaw. See Sabonis, 6 Vet. App. 426. Where (CONTINUED ON NEXT PAGE) - 6 - the law, rather than the facts, is dispositive, the benefit of the doubt provisions as set forth in 38 U.S.C.A. § 5107(b) are not for application. ORDER Basic eligibility for Dependents' Educational Assistance benefits under Chapter 35, Title 38, United States Code, is denied. RENEE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals - 7 -