Citation Nr: 1124048 Decision Date: 06/23/11 Archive Date: 06/29/11 DOCKET NO. 10-36 278A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to additional Dependents' Educational Assistance (DEA) benefits under the provisions of Chapter 35, Title 38, United States Code, to exceed an aggregate of 48 months' of Department of Veterans Affairs (VA) educational assistance benefits. ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty and died in December 2007. The appellant is her surviving spouse. This case is before the Board of Veterans' Appeals (Board) on appeal from determinations from the VA Regional Office (RO) in Atlanta, Georgia. FINDINGS OF FACT 1. The appellant used 35 months and 7 days of educational assistance under Chapter 34 when that program was in effect, based on his own military service. 2. In September 2008, the appellant was awarded Chapter 35 DEA benefits based on his deceased wife's military service, to be used within a 10 year period. 3. VA educational assistance benefits entitlement has a maximum allowable aggregate of 48 months of benefits. CONCLUSION OF LAW The appellant has no legal entitlement to more than an aggregate of 48 months of educational benefits, to include under Chapters 34 and 35. 38 U.S.C.A. §3695 (West 2002 & Supp. 2010); 38 C.F.R. § 21.4020 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (20010. There are instances in which the VCAA has been found inapplicable to claims for benefits administered outside of 38 U.S.C.A. Chapter 51. See Barger v. Principi, 16 Vet. App. 132, 138 (2002) (holding that the VCAA, with its expanded duties, 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 in Chapter 51, Title 38, United States Code (i.e., the laws changed by VCAA)). In this case, the appellant is seeking benefits under Chapter 35. Additionally, as will be explained below, under the circumstances of this case there is no legal basis upon which the claimed benefits may be awarded and the appellant's claim must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). The provisions of 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 (2002). Therefore, the Board finds that no action is necessary under the VCAA. Turning to the merits of the appellant's claim, he asserts that he should be entitled to more than the aggregate of 48 months of VA educational assistance benefits. When his wife died in 2007, the appellant was awarded Chapter 35 DEA benefits, based on her military service. He asserts that he was offered 10 years of schooling under her benefits, regardless of his past use of VA educational assistance benefits. A review of the record shows that the appellant used 35 months and 7 days of educational assistance under Chapter 34 when that program was in effect, based on his own military service. After his wife died, he applied for Chapter 35 DEA benefits. Per a September 2008 letter, he was awarded Chapter 35 benefits based on her military service. He was told that he needed to choose a start date for those benefits. VA believed the most advantageous date was February 5, 2008. At this point, he was not informed of what overall VA educational assistance he had remaining. However, he was informed that he had 10 years to use his benefits. The appellant thereafter enrolled in school and his benefits were processed. In a March 2010 letter, he was informed that he had 3 months and 12 days left of remaining VA educational assistance entitlement. He was also told that he had until his delimiting date of February 6, 2018 to use those benefits. Thereafter, the appellant indicated that in May 2010, he was told that he only had 15 days of full-time benefits remaining. Eligibility for educational assistance under Chapter 34 was established for those veterans who (A) served for a period of more than 180 days, any part of which occurred after January 31, 1955, and before January 1, 1977, and who were discharged or released therefrom under conditions other than dishonorable; (B) who contracted with the Armed Forces and were enlisted in or assigned to a reserve component prior to January 1, 1977, and as a result of such enlistment or assignment served on active duty for a period of more than 180 days, any part of which commenced within 12 months after January 1, 1977, and were discharged or released therefrom under conditions other than dishonorable; or (C) were discharged or released from active duty, any part of which was performed after January 31, 1955, and before January 1, 1977, or following entrance into active service from an enlistment provided for under subparagraph (b) because of a service-connected disability. 38 U.S.C.A. § 3452(a)(1). By congressional action, the entire Chapter 34 program expired on December 31, 1989. 38 U.S.C.A. § 3462(e). As noted, the appellant used benefits under this program. The appellant was recently awarded eligibility for Chapter 35 DEA benefits. See 38 U.S.C.A. § 3501. Although an individual may be entitled to benefits under various education programs, there is a limit as to the total aggregate period for which any person may received educational assistance under two or more educational programs. The statutes and regulations limit such educational assistance to no more than 48 months (or the part-time equivalent). 38 U.S.C.A. § 3695; 38 C.F.R. § 21.4020(a). The listed educational assistance Chapters includes both Chapter 34 and Chapter 35. As such, the appellant has no legal entitlement to more than an aggregate of 48 months of educational benefits, to include under Chapters 34 and 35 The Board is aware that the appellant may have relied on the fact that he thought he had 10 years of Chapter 35 benefits or felt misinformed. However, that fact alone, even if accurate, is insufficient to confer additional eligibility under Chapter 35. McTighe v. Brown, 7 Vet. App. 29, 30 (1994). The Board is bound by the law and cannot grant benefits based on equity. See 38 U.S.C.A. §§ 503, 7104 (West 2000); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994); see also Darrow v. Derwinski, 2 Vet. App. 303 (1992). The Board further observes 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 (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992) [citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)]. There simply is no provision pursuant to which the Board may grant the benefits sought. ORDER Entitlement to additional Chapter 35 DEA benefits, to exceed an aggregate of 48 months of VA educational assistance benefits is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs