Citation Nr: 1314831 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 09-32 341A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether the Board has jurisdiction to consider a claim that the Veteran's child, C, is entitled to payment of Dependents' Educational Assistance under Chapter 35, Title 38, United States Code, prior to August 5, 2001. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran had active service from July 1968 to February 1970. In 2002, a child of the Veteran (hereinafter, C), sought education benefits. Her appeal came before the Board of Veterans' Appeals (Board) following a September 2002 decision letter from the Department of Veterans Affairs (VA) Regional Office (RO) located in Atlanta, Georgia. The Veteran and C testified at a Travel Board hearing in October 2010. In July 2011, the Veterans Law Judge who conducted the October 2010 Travel Board hearing issued a Board decision which denied the claim for retroactive educational assistance benefits for C prior to August 5, 2001. Because, as explained further below, there is no appeal pending before the Board, this decision references the Veteran's child as "C" rather than as an appellant. FINDINGS OF FACT 1. A decision issued by the Board in July 2011 denied a claim for retroactive educational assistance benefits prior to August 5, 2001, following a partial grant and partial denial of a claim for such benefits submitted by a child of the Veteran. 2. C has not submitted a new claim for education benefits for the period prior to August 5, 2001, nor does the claims file or virtual claims file provide evidence that C has alleged that the July 2011 Board decision is not final. 3. Although the RO scheduled a Travel Board hearing and certified the issue of C's entitlement to retroactive educational assistance benefits prior to August 5, 2001, the Board does not have jurisdiction over the claim. CONCLUSION OF LAW The Board does not have jurisdiction to adjudicate a claim that C is entitled to payment of Dependents' Educational Assistance under Chapter 35, Title 38, United States Code, prior to August 5, 2001. 38 U.S.C.A. § 7104 (West 2002 & Supp. 2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In 2002, C, as a child of the Veteran, sought education assistance benefits, Survivors' and Dependents' Educational Assistance (DEA), under Chapter 35, Title 38, of the United States Code. See 38 U.S.C.A. §§ 3500, 3501; 38 C.F.R. §§ 21.3020, 21.3021. Benefits were granted from August 5, 2001. C appealed for education assistance prior to August 5, 2001. The Veteran and C testified at a Travel Board hearing in October 2010. In July 2011, the Veterans Law Judge who conducted the October 2010 Travel Board hearing issued a Board decision which denied the claim for retroactive educational assistance benefits for C prior to August 5, 2001. C did not appeal that decision, and it became final. 38 U.S.C.A. §§ 5108, 7104, 7105. Unfortunately, the July 2011 Board decision was filed in the claims file of the Veteran, not in the claims file for C. The electronic docketing system entries pertaining to C's claim were not accurately updated. The fact that C had been afforded a Travel Board hearing in 2010 and the fact that a decision was issued by the Board in July 2011 were not shown in the electronic database. Rather, the entries under C's docket number reflect an outstanding request for a Travel Board hearing. A Travel Board hearing for C was scheduled, and a Travel Board hearing was conducted by the undersigned in July 2012. C, who was not represented, discussed the facts previously presented to Board, and did not provide additional or new evidence. C did not discuss the Board's 2011 decision, so her testimony, even liberally construed, does not constitute a motion for reconsideration. C did not submit a new claim for benefits, nor did she request that the claim be reopened or assert that she had submitted additional evidence. She did not assert that the Board's 2011 decision was incorrect, since she did not reference the Board's 2011 decision, so her testimony cannot be interpreted as a claim that there was clear and unmistakable evidence in the Board's 2011 decision. See 38 U.S.C.A. § 7111. The Board has the authority to determine whether it has jurisdiction to review a case, and may dismiss any case over which it does not have jurisdiction. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.101(d) (2012). The pertinent regulation provides that, when the Board, on its own initiative, raises a question as to a potential jurisdictional defect, parties to the proceeding will be given notice of the potential jurisdictional defect(s) and granted a period of 60 days to present written argument and additional evidence relevant to jurisdiction. In this case, however, the procedural requirement is not applicable, because there is no fact C can present which will vitiate the finality of the July 2011 Board decision. As a matter of law, the Board has no jurisdiction to adjudicate C's appeal of a September 2002 rating decision. Such decision denied a claim for retroactive educational assistance benefits prior to August 5, 2001, because the Board has already issued a final decision on that claim. The fact that C was scheduled for a Travel Board hearing in error and presented testimony at that hearing does not provide a basis for jurisdiction for appellate review by the Board. Even though the agency of original jurisdiction transferred C's "appeal" to the Board, there is no "appeal" of any matter over which the Board can take jurisdiction. Accordingly, the procedural requirements set forth in 38 C.F.R. § 20.101(d) are not applicable. Because the Board has no jurisdiction to conducted appellate review of a claim that C is entitled to education benefits prior to August 5, 2001, the claim must be dismissed as a matter of law. The law and regulations are controlling. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER The Board lacks jurisdiction to consider a claim that C is entitled to payment of Dependents' Educational Assistance prior to August 5, 2001, and the appeal is dismissed. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs