Citation Nr: 1222682 Decision Date: 06/28/12 Archive Date: 07/10/12 DOCKET NO. 08-02 611 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to Dependents Educational Assistance (DEA) benefits under the provisions of 38 U.S.C. § Chapter 35. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from December 1968 to September 1970. The appellant is the Veteran's daughter. This matter was remanded by the Board of Veterans' Appeals (Board) in November 2011 to the Department of Veterans Affairs (VA) Regional Office (RO) Muskogee, Oklahoma for a travel board hearing. A hearing was scheduled for April 25, 2012, and the appellant was notified of the hearing by VA letter dated March 20, 2012. She failed to appear at the hearing without explanation. Consequently, her request for a hearing is considered withdrawn. See 38 C.F.R. § 20.702(d) (2011). FINDINGS OF FACT 1. In a June 2004 rating decision, the RO granted the Veteran basic eligibility to DEA benefits, effective from December 2003, based on permanent and total disability. 2. In May 2007, the appellant, who is the Veteran's daughter, filed a claim for DEA benefits under Chapter 35. 3. The appellant was born in July 1972. 4. The appellant reached her 26th birthday in July 1998, prior to the effective date of the finding of permanent total disability for the Veteran. CONCLUSION OF LAW The eligibility criteria for DEA benefits under Chapter 35, Title 38, United States Code, for the appellant beyond her 26th birthday have not been met. 38 U.S.C.A. §§ 3501, 3512 (West 2002 & Supp. 2011); 38 C.F.R. §§ 21.3021, 21.3040, 21.3041 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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 and Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Because the application of the law to the facts of this case is dispositive of this appeal, no discussion of VA's duties to notify and assist is necessary. See Mason v. Principi, 16 Vet. App. 129 (2002). The Board also notes that it does not appear that the provisions of the VCAA apply to claims for educational benefits under Chapter 35. See e.g. Barger v. Principi, 16 Vet. App. 132, 138 (2002). In any case, the appellant was given appropriate notice of the decision in her case and has had ample opportunity to respond and to submit argument and/or evidence. Analysis of the Claim 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. Eligibility for Chapter 35 benefits further requires 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). After the appellant filed her claim for DEA benefits, the regulations pertaining to the periods of eligibility for DEA benefits for an eligible child were amended, effective May 28, 2008. See 73 Fed. Reg. 30,486 - 30,492 (2008). Thus, the Board may apply either the initial or revised criteria to the appellant's claim, whichever is more favorable to her. Both the prior and revised version of 38 C.F.R. § 21.3041 provide that 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. 38 C.F.R. § 21.3041(a) (2011); 38 C.F.R. § 21.3041(a) (2007). Under the prior regulation, the basic ending date for educational assistance was the date of the child's 26th birthday. 38 C.F.R. § 21.3041(c) (2007). Under the revised regulation, the period of eligibility generally ends on the earlier of the date of the child's 26th birthday or the date the Veteran is no longer permanently and totally disabled. 38 C.F.R. § 21.3041(a) (2011). Under the prior version of 38 C.F.R. § 21.3041, the beginning date for eligibility for benefits could be tolled if the effective date of the finding of permanent and total disability was prior to the child's 18th birthday, but the Veteran did not receive notice of this rating until after the child became 18. 38 C.F.R. § 21.3041(b)(2)(i) (2007). Also, the beginning date could be extended if the permanent and total disability rating was assigned after the child reached 18, but before the child turned 26. 38 C.F.R. § 21.3041(b)(2)(ii) (2007). Under the prior regulation, the ending date for eligibility for educational assistance could be modified for up to eight years beyond a qualifying event, but in no case beyond the date the child reached age 31. In order to modify the ending date, however, the qualifying event had to occur between the time the child reached age 18 and when the child reached age 26, and not thereafter. See 38 C.F.R. § 21.3041(d) (2007). Under the revised regulation, if the effective date of the permanent and total rating is before the child's 18th birthday, and the date of notification to the Veteran occurs after the child's 18th birthday but before the child's 26th birthday, the child may elect the beginning date of his or her period of eligibility. If the child elects a beginning date that is before his or her 18th birthday, the period of eligibility ends the earlier of the date that the Veteran is no longer rated permanently and totally disabled, or the date of the child's 26th birthday. If the child elects a beginning date after his or her 18th birthday, the period of eligibility ends the earlier of the date the Veteran is no longer rated permanently and totally disabled or 8 years after the beginning date the child elects. 38 C.F.R. § 21.3041(a)(2)(i) (2011). If the effective date of the permanent and total rating occurs after the child's 18th birthday but before the child's 26th birthday, the child may elect the beginning date of his or her period of eligibility. The period of eligibility ends the earlier of the date the Veteran is no longer rated permanently and totally disabled, or 8 years after the beginning date the child elects. 38 C.F.R. § 21.3041(a)(2)(ii) (2011). In the instant case, the appellant is the daughter of the Veteran. She was born in July 1972. In a June 2004 rating decision, basic eligibility for DEA benefits for the Veteran's eligible dependents was established effective December 2003, based on a finding that the Veteran currently had a total service-connected disability, permanent in nature. In May 2007, at the age of 34, the appellant filed a claim for eligibility for DEA benefits, noting that she was scheduled to attend El Centro College in Dallas, Texas beginning in September 2007. In a May 2007 decision, the RO denied eligibility for DEA benefits, noting that the record showed that the appellant had reached age 26 prior to December 2003, the date that the Veteran was rated as totally and permanently disabled. In her August 2007 notice of disagreement, the appellant claimed that she should be granted DEA benefits because the Veteran had service-connected disability effective in 1984, even though VA had held his claim in appeal until 2004. As noted above, under both the prior and revised versions of the applicable regulation, the ending date for eligibility for DEA benefits is generally either the dependent child's 26th birthday or the date that the Veteran is no longer permanently disabled. Thus, in the instant case, as the Veteran is still permanently disabled, the general ending date applicable to the appellant would be her 26th birthday. Also, as noted above, there are some exceptions to the ending date requirement. However, none of these exceptions apply to a dependent child who was 26 years old or older at the time that the finding of the Veteran's total and permanent disability went into effect. Despite the appellant's contentions in her notice of disagreement that the Veteran has been receiving benefits for his disability since 1984, when she was under 26 years old, even though a final decision on the Veteran's appeal was held up until 2004, when she was over 26 years old, the date of general disability is not relevant to this case. Rather, it is the date of permanent and total disability that matters. The record clearly shows that, although the Veteran was initially granted service connection for disability effective in September 1970, and there is a November 1984 rating decision denying extension of the Veteran's delimiting day for eligibility to DEA benefits, he was not granted permanent and total disability benefits effective until December 2003, which is several years after the appellant turned 26 years old. Consequently, none of the aforementioned exceptions apply to her. Accordingly, she is not eligible for DEA benefits. (The Board notes that while the prior regulation allows for an exception when a "qualifying event" occurs between the appellants 18th and 26th birthday, this provision is referring to events occurring on or after the date the Veteran is found to be totally disabled. Thus, as the appellant was already over 26 when the Veteran was found to be totally disabled, a "qualifying event" exception cannot be applicable to her. See 38 C.F.R. § 21.3041(d) (2007)). The Board sympathizes with the appellant's financial challenges and her strong motivation to further her education. However, it is bound by the applicable law and regulations. As this applicable authority does not allow for eligibility for DEA benefits for a child of a Veteran who was already over 26 at the time that the Veteran became totally and permanently disabled, there is no legal basis for granting such benefits to the appellant. In cases such as this where the law is dispositive, the claim must be denied due to a lack of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER DEA benefits under 38 U.S.C. § Chapter 35 are denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs