Citation Nr: 1311346 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 10-47 134A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office Education Center in St. Louis, Missouri THE ISSUE Entitlement to payment of Dependents' Educational Assistance (DEA) benefits under the provisions of Chapter 35, Title 38, United States Code, for the period prior to June 15, 2009. REPRESENTATION C. Fields, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1987 to August 1987. The appellant is his son. This matter comes before the Board of Veterans' Appeals (Board) from a September 2010 decision of the Department of Veterans' Affairs (VA) Regional Office (RO) Education Center in St. Louis, Missouri. In that decision, the RO denied the appellant's application for Chapter 35 education benefits for the period prior to June 15, 2009. No hearing has been requested. FINDINGS OF FACT 1. The appellant is the child of a Veteran who has a total disability, permanent in nature, due to service-connected disability. 2. In a May 1993 rating decision, the Veteran was granted a permanent and total disability rating, effective February 3, 1993; and he was notified at that time. 3. The appellant was born on February [redacted], 1990. 4. The appellant's application for DEA benefits was received on June 15, 2010. CONCLUSION OF LAW The criteria for entitlement to payment of DEA benefits under the provisions of Chapter 35 for the period prior to June 15, 2009, have not been met. 38 U.S.C.A. §§ 3501, 3512, 5113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 21.1029, 21.3021, 21.3041, 21.4131, 21.4135 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant has been awarded DEA benefits for his community college education beginning in August 2010, which are not on appeal. He seeks entitlement to payment for DEA benefits for the portion of his high school education, which ended in June 2008, that occurred during his period of eligibility. The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). However, the VCAA does not apply in circumstances where the issue presented is solely one of statutory interpretation or the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 230 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). Moreover, applicable regulations state that VA has no duty to notify or assist in a claim for educational benefits where the claim cannot be substantiated because there is no legal basis for the claim, or undisputed facts render the claimant ineligible for the claimed benefit. 38 C.F.R. §§ 21.1031, 21.1032(d). This is indeed the situation in this case. The pertinent facts are not in dispute; instead, resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to payment of education benefits. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002); VAOPGCPREC 5-2004 (June 23, 2004). Therefore, no further notice or assistance is required for a fair adjudication. The appellant's eligibility for DEA benefits under the provisions of Chapter 35 derives from his status as a child of a Veteran with a permanent and total (P&T) disability rating. 38 U.S.C.A. § 3501(a)(1)(A)(ii); 38 C.F.R. § 21.3021(a)(1)(iii). The commencing date of an original award of Chapter 35 educational assistance benefits generally will be the latest of the following dates: (a) the beginning date of eligibility as determined by the applicable regulation (in this case, § 21.3041, which applies to an eligible child); (b) one year before the date of the claim as determined under § 21.1029(b); (c) the date certified by the educational institution at issue; or (d) the effective date of the course approval, or one year before the date VA receives the approval notice, whichever is later. 38 C.F.R. § 21.4131(d)(1). Further, as pertinent to this case, when determining the commencing date of DEA benefits under Chapter 35, VA will consider an eligible person's application as having been filed on his or her eligibility date if all of the following have been met: (1) the eligibility date is more than 1 year before the initial rating decision that establishes that the veteran has a permanent and total disability; (2) the eligible person files his or her original application for DEA benefits within 1 year of the initial rating decision; (3) the eligible person claims educational assistance for pursuit of an approved program of education for a period that is more than 1 year before the date that VA receives his or her original claim; (4) VA received the original application on or after November 1, 2000; and (5) the eligible person would have been eligible for educational assistance under Chapter 35 if he or she had filed a claim on his or her eligibility date. 38 U.S.C.A. § 5113 (b); 38 C.F.R. § 21.4135(d). Where eligibility is derived from a veteran with a permanent and total disability rating, and the veteran was notified of the permanent and total status prior to the eligible child's 18th birthday, the period of eligibility generally begins on the child's 18th birthday, or on the successful completion of the child's secondary schooling, whichever first occurs. 38 U.S.C.A. § 3512(a); 38 C.F.R. § 21.3041(a). Here, the Veteran was granted a permanent and total disability rating effective February 3, 1993, in a May 1993 rating decision, and the Veteran was also notified of that decision in May 1993. The appellant was born on February [redacted], 1990, and he turned 18 on February [redacted], 2008. He completed his secondary schooling (high school) in June 2008, or after his 18th birthday. As the Veteran was notified of his permanent and total rating prior to the appellant's 18th birthday, the beginning date of the appellant's period of eligibility for DEA benefits was February [redacted], 2008. See id. There are certain circumstances under which the child's period of eligibility may begin prior to the child's 18th birthday; however, there is no argument or indication that such exceptions apply in this case. See 38 C.F.R. § 21.3041(a)(1). The date of a claim for DEA benefits under Chapter 35 is generally considered that on which a valid claim or application is considered to have been filed with VA, based upon either the date of a formal claim received at VA, or if an informal claim has been filed, and a formal claim is then received within one year of the date VA requested it, the date VA received the informal claim. 38 C.F.R. § 21.1029(b). In this case, the RO has indicated that appellant submitted an application for DEA benefits (VA Form 22-5490) via the internet on June 15, 2010. The appellant does not dispute that this is the date his claim was actually filed. Although the internet application in the claims file is not date-stamped, and a handwritten version is date-stamped in July 2010, the Board will assume for the purposes of this appeal that the appellant's claim for DEA benefits was actually received on June 15, 2010. As noted above, the period of education at issue on appeal is the appellant's high school education. That school certified that the appellant was enrolled from August 2, 2004, through June 1, 2008, and that he received a high school diploma. Under 38 C.F.R. § 21.4131(d)(1), the commencing date for the appellant's eligibility for DEA benefits is June 15, 2009, as this is the later of the appellant's date of eligibility (February [redacted], 2008); the dates certified by the school at issue (high school enrollment ending on June 2, 2008); and one year prior to the date of receipt of his claim on June 15, 2010 (or June 15, 2009). The Board has considered whether the appellant's application may be deemed to have been filed on his eligibility date under 38 C.F.R. § 21.4131(e), as he seeks educational assistance for his high school program that was completed more than one year before the date that VA received his original claim. However, the remaining provisions of §21.4131(e) have not been met. Rather, the appellant's eligibility date and the date of receipt of his application for DEA benefits were both many years after the initial rating decision that granted the Veteran a permanent and total disability rating in May 1993. See also 38 U.S.C.A. § 5113 (b). Therefore, the proper commencing date for the appellant's DEA benefits remains June 15, 2009, which was after the date of completion of the high school education at issue. The appellant does not dispute any of the facts as stated above. Rather, he argues that he should be entitled to benefits from the date of his eligibility through his completion of high school in June 2008 because he and his parents did not understand that he was eligible to apply for DEA benefits at that time. The Veteran initially indicated in a July 2010 statement that he did not receive a notification in February 2008 that the appellant was eligible to apply for DEA benefits at that time, and they only became aware when they received a similar later concerning his younger son in 2010. However, the appellant subsequently indicated in October 2010 that the Veteran and his wife did, in fact, receive such a letter concerning the appellant in February 2008. They were confused by the title of the application as "Survivors' and Dependents' Educational Assistance" and thought that it only applied to survivors, or children of a deceased veteran. The Veteran and the appellant did not follow up on the application form in February 2008, but the appellant's grandfather followed up on the subsequent form in 2010 and clarified that benefits are also available for children of veterans that are still living. The appellant then filed the current claim for DEA benefits. The appellant also argues that the letter in February 2008 was erroneously sent to his parents, not directly to him, and that the Veteran's service-connected disability interfered with his understanding and ability to follow-up on the initial notice. To the extent that the appellant contends that VA did not follow proper procedures in providing notice that he was eligible to apply for DEA benefits in February 2008, there is a "presumption of regularity" under which it is presumed that Government officials have properly discharged their official duties. Clear evidence to the contrary is required to rebut the presumption of regularity. Mindenhall v. Brown, 7 Vet. App. 271 (1994) (concerning procedures at the RO). The initial letter concerning the appellant's eligibility to apply for DEA benefits in February 2008 is not of record. Nevertheless, there is not clear evidence to indicate that VA did not properly discharge its duties in that regard. As such, the appellant and the Veteran are presumed to have received proper notice concerning his initial eligibility in February 2008, whether or not they understood its contents. The legal criteria in this case are clear and the pertinent facts are not in dispute. Although the Board is sympathetic to the appellant's claim, entitlement to educational assistance benefits is prefaced on specific and unambiguous requirements, which have not been met. The Board has no authority to grant claims on an equitable basis and, instead, is constrained to follow the specific provisions of law. See 38 U.S.C.A. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). As the law and not the evidence is dispositive, the appellant's claim for educational assistance benefits for the period prior to June 15, 2009, must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to payment of DEA benefits under the provisions of Chapter 35 for the period prior to June 15, 2009, is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs