Citation Nr: 1326121 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 11-20 544 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Basic eligibility for Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code. ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to January 1968. The appellant is his adult daughter. This matter comes before the Board of Veteran's Appeals (Board) on appeal from an April 2011 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the appellant's claim for DEA benefits under Chapter 35, Title 38, United States Code, on the basis that she had not established eligibility due to age. The appellant maintains she would have been age-eligible for DEA prior to her 26th birthday in April 2009 had the Veteran not been kept from timely filing for disability benefits for medical reasons. In rating decisions of August 2010 and November 2010, the RO granted the Veteran's claims of service connection for prostate cancer and chronic ischemic heart disease (both on a presumptive basis as due to Agent Orange exposure), respectively, and granted a 100 percent rating for each, effective on April 9, 2009 (the date of his claim). The appellant contends that but for the delay caused by the need for medical treatment and rehabilitation required for the conditions causing the Veteran's permanent and total disablement - a heart attack in February 2009 at the same time as receiving a diagnosis of prostate cancer - she would have been entitled to the educational benefits she now seeks. She requests that the time delay in the Veteran's filing of a disability compensation claim be waived and that an "exception" be made in the ruling on her eligibility for DEA. To the extent that the appellant is claiming an earlier effective date for the Veteran's award of service connection for chronic ischemic heart disease and prostate cancer, the Board does not have jurisdiction over such a claim. An issue regarding an earlier effective date in the Veteran's award of a permanent and total rating for service-connected disabilities has not been adjudicated by the RO. Moreover, the appellant does not have standing to pursue an earlier effective date claim, as the August 2010 and November 2010 RO adjudications were for the Veteran's claims for service connection. Further, there is no indication in the record that the Veteran has appealed the rating decision regarding the effective date (April 9, 2009) assigned to his permanent and total disability award, nor is it shown that he is incapacitated or otherwise unable to raise on his own behalf a claim for an earlier effective date (on a basis that clear and unmistakable error had been committed in the 2010 rating decisions that assigned the effective date of April 9, 2009). Hence, the Board does not find there to be a raised claim for referral to the RO for appropriate action. FINDINGS OF FACT 1. In an August 2010 rating decision, the RO granted the Veteran service connection for prostate cancer based on exposure to Agent Orange, and assigned a 100 percent rating effective April 9, 2009; the decision was not appealed. 2. In a November 2010 rating decision, the RO granted the Veteran service connection for chronic ischemic heart disease based on exposure to Agent Orange, and assigned a 100 percent rating effective April 9, 2009; the decision was not appealed. 3. The November 2010 RO rating decision also granted basic eligibility to DEA benefits, from April 9, 2009, based on permanent and total disability. 4. In March 2011, the appellant, who is the Veteran's adult daughter and who was born on April [redacted], 1983, filed a claim for DEA benefits under Chapter 35. 5. The appellant reached her 26th birthday prior to the effective date of the finding of permanent and total disability for the Veteran on April 9, 2009; she is not a proper claimant under the statutory and regulatory provisions pertaining to VA DEA benefits. CONCLUSION OF LAW The appellant does not met the age eligibility criteria for entitlement to DEA benefits under Chapter 35, Title 38, United States Code, beyond her 26th birthday. 38 U.S.C.A. §§ 3501, 3512 (West 2002); 38 C.F.R. §§ 21.3021, 21.3040, 21.3041 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. The statutory and regulatory provisions, pertaining to VA's duty to notify and to assist, do not apply to a claim if resolution of the claim is based on statutory interpretation and the facts are not in dispute. As the analysis will show, the outcome of this appeal turns the appellant's age (birth date) which is not in dispute; therefore, she is not entitled to the benefit sought as a matter of law. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Legal Criteria, Factual Background, and Analysis 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). Under 38 C.F.R. § 21.3041, 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). The basic ending date for educational assistance is 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). 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). 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). Initially, the Board notes that it has reviewed all of the evidence in the education file created upon receipt of the appellant's claim for DEA, as well as those records from the Veteran's physical claims file that have been uploaded electronically to his file on VA's "Virtual VA" system. Notably, the electronic file does not contain all documents found in the physical claims file; however, it does contain those records that are relevant to deciding this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. In the instant case, the appellant is the daughter of the Veteran. She was born on April [redacted], 1983, as shown by a copy of her birth certificate. In rating decisions of August 2010 and November 2010, the RO granted claims of service connection for prostate cancer and chronic ischemic heart disease, respectively, both on a presumptive basis on account of the Veteran's exposure to Agent Orange during service in Vietnam. The RO assigned each disability a 100 percent rating, effective April 9, 2009, although the RO indicated in the August 2010 decision that the rating for the prostate cancer was not considered permanent and was subject to a future review examination. The November 2010 rating decision also established basic eligibility for DEA benefits for eligible dependents, based on the finding that the Veteran's service-connected heart disease was totally and permanently disabling in nature. There is no indication that the Veteran appealed the rating decision in regard to the effective date; thus, the rating decision of November 2010 has become final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.1103 (2012). In March 2011, the appellant filed a claim for DEA benefits. In an April 2011 decision, the RO denied eligibility for DEA benefits, noting that the record showed that the appellant had reached age 26 before the effective date (April 9, 2009) that the Veteran was rated totally and permanently disabled. In a April 2011 statement, the appellant argued that the Veteran was unable to file a claim for disability compensation benefits with a VA office prior to April 9, 2009 due to his medical problems. She explained that he had suffered a heart attack in February 2009 and also just had prostate cancer diagnosed, and that medical treatment and rehabilitation prevented him from filing a claim with VA until three days after she turned 26 years old. Essentially, she maintained that she was eligible for DEA benefits prior to her 26th birthday, as the Veteran was in fact permanently disabled due to his heart disease and prostate cancer, but that the Veteran's medical status prevented him from actually filing a claim until just after she turned 26 years old. She asked that an "exception" be made in her case on account of the Veteran's inability to file earlier for the benefits upon which DEA benefits could be established. According to the medical evidence cited in the August 2010 and November 2010 rating decisions, the Veteran had in fact suffered a myocardial infarction and had prostate cancer diagnosed in the weeks preceding his claim for VA disability compensation. Nevertheless, the Veteran's total and permanent disability rating is effective April 9, 2009. The pertinent regulation in this matter clearly states that 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. Therefore, in the instant case, as the Veteran's permanent and total disability rating was not revoked, the general ending date applicable to the appellant would be her 26th birthday, which occurred on April [redacted], 2009, or three days prior to the November 2010 rating decision that assigned the effective date of April 9, 2009. As previously noted, there are some exceptions to the ending date requirement. However, none of these exceptions apply to a dependent child who is 26 years old or older at the time that the Veteran's total and permanent disability award becomes effective. Despite the appellant's assertions that the Veteran had been permanently and totally disabled in the weeks leading up to his actual filing for VA disability compensation, the record clearly shows that the permanent and total rating went into effect on April 9, 2009, days after the appellant had turned 26 years old. Consequently, none of the aforementioned exceptions apply to her, and she is not eligible for DEA benefits. The Board sympathizes with the appellant, particularly as the effective date of the Veteran's permanent and total disability rating is a mere 3 days after her 26th birthday. However, it is bound by the applicable law and regulations. As the governing law and regulations do not allow for eligibility for DEA benefits for a veteran's child who was already 26 years old at the time that the Veteran became totally and permanently disabled, there is no legal basis for granting such benefit 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 Basic eligibility for Dependents' Educational Assistance (DEA) benefits (beyond the appellant's 26th birthday) is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs