Citation Nr: 1324629 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 10-30 606 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to extension of the ending date of a surviving dependent 's educational assistance under the provisions of Title 38, United States Code, Chapter 35. WITNESSES AT HEARING ON APPEAL Appellant and the Veteran ATTORNEY FOR THE BOARD G. Wasik, Counsel INTRODUCTION The Veteran, who served on active duty from February 1969 to March 1971, has been found by VA to be permanently and totally disabled since July 1, 1997, due to service- connected disability, establishing basic eligibility for Dependents' Educational Assistance under Chapter 35 for the appellant, who is the veteran's dependent. This matter is before the Board of Veterans' Appeals (Board) on appeal of a determination in December 2009 by the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. The Veteran was found to be permanently and totally disabled due to service-connected disability as of July 1, 1997. 2. The appellant turned 18 in January 2002 and turned 26 in January 2010. 3. The appellant received continuous DEA benefits from August 2005 to January 2010. 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. 2012); 38 C.F.R. §§21.3021, 21.3040, 21.3041, 21.3043 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) enhanced the Department of Veterans Affairs' (VA) duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). For educational assistance claims, the regulations delineating the specific notification and assistance requirements are set forth in 38 C.F.R. §§ 21.1031, 21.1032 (2012). In this case, the facts are not in dispute. The United States Court of Appeals for Veterans Claims (Court) has held that the statutory and regulatory provisions pertaining to VA's duties to notify and to assist do not apply to a claim if resolution of that claim is based on legal interpretation, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). See also VAOPGCPREC 2-2004. There is no possibility that any additional notice or development would aid the appellant in substantiating her claim. Thus, any deficiency of notice or of the duty to assist constitutes harmless error. A person is eligible for DEA benefits if he or she is the child of a veteran who has a permanent and total disability rating. 38 U.S.C.A. § 3501(a)(1)(D)(i); 38 C.F.R. § 21.3021(a)(3)(i). As applicable to this case, an eligible child's 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. 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 U.S.C.A. § 3512(a); 38 C.F.R. § 21.3041(a). The operative facts are not in dispute. The appellant's beginning date of eligibility for DEA benefits is January [redacted], 2002, the day she turned 18 and the ending date is January [redacted], 2010, the day she turned 26. The appellant received continuous DEA benefits from August 29, 2005 to January [redacted], 2010. The appellant is requesting an extension of her eligibility to receive DEA benefits past January [redacted], 2010 based on situations beyond her control to include medical disability and the need to care for family members. The law provides that an eligible person may suspend her program of education for conditions deemed to be beyond her control. 38 C.F.R. §§21.3041 (g), 21.3043. Such conditions include when immediate family or financial obligations beyond his or her control require the eligible person to take employment, or otherwise preclude pursuit of his or her program and when pursuit of a program is precluded because of the eligible person's own illness or illness or death in the immediate family. 38 C.F.R. §21.3043(b) and (d). The period of suspension shall be considered to have ended as of the date of the person's first available opportunity to resume training after the condition that caused it ceased to exist. 38 C.F.R. §21.3043. The Board notes the laws pertaining to extension of the time within which DEA benefits may be used all require that an eligible person actually suspend her program of education for conditions deemed beyond her control. In the current case, the appellant has never suspended her program of education during the applicable time period. The Veteran testified that the appellant could never attend school full time as a result of personal obligations and that this was similar to a suspension. Significantly, the law is clear that, in order to even consider the reasons advanced for why an extension should be granted, the applicant must have suspended her program of education. Both 38 C.F.R. §21.3041 and § 21.3043 reference a requirement that the eligible person "suspends" the education program. The appellant has argued that the reduction in her schooling which occurred for reasons beyond her control was the equivalent of a suspension of the benefits. Unfortunately, the Board finds the wording of the operative regulations were quite clear regarding the requirement that pursuit of the education program be suspended. This did not occur in the present case. 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. 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. ORDER The appeal is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs