Citation Nr: 1124672 Decision Date: 06/29/11 Archive Date: 07/06/11 DOCKET NO. 10-37 372 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to basic eligibility for Dependents' Educational Assistance benefits under Chapter 35, Title 38, United States Code. ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The appellant is the child of a Veteran who served on active duty during the Vietnam era. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma (RO). FINDINGS OF FACT 1. The appellant's 26th birthday occurred on November [redacted], 2001. 2. The appellant's father was rated as permanently and totally disabled effective March 5, 2004. CONCLUSION OF LAW The criteria for eligibility for Dependents' Educational Assistance (DEA) benefits under 38 U.S.C.A. Chapter 35 have not been met. 38 U.S.C.A. §§ 3501, 3512 (West 2002 and Supp. 2010); 38 C.F.R. §§ 21.3021, 21.3040, 21.3041 (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) (2010). However, this case does not involve a claim for benefits under 38 U.S.C.A. Chapter 51; rather, since the appellant is seeking eligibility for education benefits under 38 U.S.C.A. Chapter 35, she is not a "claimant" within the meaning of the VCAA statute. See Lueras v. Principi, 18 Vet. App. 435, 438-439 (2004) (VCAA notice and assistance provisions do not apply to chapter 53 proceedings involving special provisions relating to benefits); Sims v. Nicholson, 19 Vet. App. 453, 456 (2006) (VCAA does not apply to application for restoration of competency because it is not a chapter 51 claim for benefits). Since this is a matter under Chapter 35, the VCAA provisions are not applicable to this appeal. The appellant seeks entitlement to DEA benefits under 38 U.S.C.A. Chapter 35. The evidence of record shows that the appellant's 26th birthday occurred November [redacted], 2001 and that the appellant's father was rated as permanently and totally disabled effective March 5, 2004. The appellant requests an extension of the eligibility period beyond her 26th birthday on the basis of 38 U.S.C.A. § 3512(c)(3), which provides educational assistance beyond 26 years of age under certain circumstances. 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)(1)(A); 38 C.F.R. § 21.3021. With respect to a child of a Veteran whose father is totally and permanently disabled, such as the appellant's, VA regulations clearly define the age limit for commencement of those benefits as follows: No person is eligible for educational assistance who reached his or her 26th birthday on or before the effective date of a finding of permanent total service-connected disability. 38 C.F.R. § 21.3040(c). In this case, the appellant was born on November [redacted], 1975. Her 26th birthday was therefore on November [redacted], 2001. There is no evidence of record indicating, nor does the appellant contend, that the Veteran received a permanent and total rating prior to November [redacted], 2001. Furthermore, the appellant did not bring her claim for education benefits prior to November [redacted], 2001. Since the appellant had reached her 26th birthday before the date of the Veteran's permanent and total rating, she is not eligible for DEA under 38 U.S.C.A. Chapter 35. With regard to the appellant's claim regarding receiving benefits beyond the age of 26, in certain situations benefits may be extended beyond an eligible child's 26th birthday, but generally not past her 31st birthday. 38 U.S.C.A. § 3512; 38 C.F.R. §§ 21.3040(d), 21.3041(a)(g). These provisions apply in situations where a claimant is already in receipt of Chapter 35 educational assistance benefits and is pursuing her education, but has had to stop her education because of certain events beyond her control. 38 U.S.C.A. § 3512(c)(3); 38 C.F.R. § 21.3041(g)(h). The appellant has presented evidence that she was unable to attend college at an earlier age due to uncontrolled diabetes. However, in this case, because the Veteran did not receive his total rating until after the appellant turned 26 years, the appellant was never eligible for DEA benefits under 38 U.S.C.A. Chapter 35 in the first place. As such, she also cannot be eligible for an extension of such benefits, as an extension can only be awarded after initial entitlement is established. The Board is sympathetic to the appellant's claim and the circumstances of the events surrounding this appeal. However, the applicable laws and regulations as written preclude a grant of benefits, even on an equitable basis. See 38 U.S.C.A. §§ 503, 7104 (West 2002); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). "No equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). The Board is without the authority to disregard the applicable laws, notwithstanding the extenuating circumstances that have resulted in this appeal. Congress did not enact any exceptions to the above-discussed legal provisions that would permit a grant of the requested benefits. Since the regulations specifically state that a child of a Veteran who reaches his or her 26th birthday before the Veteran's permanent and total rating is effective is not eligible for education benefits, eligibility for DEA benefits cannot be established. In this case, in order for the appellant to become eligible for DEA benefits, the effective date for the Veteran's permanent and total rating would have to be prior to November [redacted], 2001. As the disposition of this claim is based on the law, and not on the facts of the case, the claim must therefore be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Eligibility for DEA benefits under Chapter 35, Title 38, United States Code, is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs