Citation Nr: 1326498 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 13-00 294 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Eligibility for Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The appellant and his father ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran was a member of the United States Air Force, with active duty from May 1956 to May 1976. The appellant is the Veteran's son. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 administrative denial issued to the appellant by the Department of Veterans Affairs (VA) Muskogee Education Center located at VA's Regional Office (RO) in Muskogee, Oklahoma. Although the Veteran and appellant reside in the state of Washington, due to the subject matter of the appellant's claim, the Education Center at the Muskogee VARO retains original jurisdiction. A hearing was held in March 2013 before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing testimony is in the file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Effective October 4, 2006, the Veteran was found to be permanently and totally disabled. 2. The appellant is the adult son of the Veteran. 3. The appellant attained the age of 26 in December 1997, prior to the date on which the Veteran was found to be permanently and totally disabled for VA purposes. CONCLUSION OF LAW The criteria for eligibility for Chapter 35 educational benefits have not been met. 38 U.S.C.A. §§ 3501, 3512 (West 2002); 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), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. However, the United States Court of Appeals for Veterans Claims (Court) has held that when the law as mandated by statute, and not the evidence, is dispositive of the claim, the above provisions are not applicable. Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Manning v. Principi, 16 Vet. App. 534, 542 (2002); Mason v. Principi, 16 Vet. App. 129 (2002). Additionally, VA's General Counsel held in a precedential opinion that there is no duty to notify a claimant where the claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit and no duty to assist a claimant where there is no reasonable possibility that such aid could substantiate the claim. VAOPGCPREC 5-2004 (June 23, 2004). For reasons that will be explained in more detail below, the Board finds that there is no legal entitlement to the benefits claimed. Therefore, the Board finds that there is no reasonable possibility that further notice or assistance would aid in substantiating this claim. Accordingly, the Board finds that no further discussion of the VCAA is required because any deficiencies of notice or assistance are moot. 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the provisions regarding notice and assistance is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). Legal Criteria Basic eligibility for DEA benefits is established in one of several ways, including being a child of a veteran who has a permanent and total disability evaluation. 38 U.S.C.A. § 3501(a)(1)(A)(ii); 38 C.F.R. § 21.3021(a)(1)(iii). In this case, the appellant's potential eligibility for DEA benefits derives from his status as the legally-recognized child of a permanently and totally disabled veteran. The basic beginning date for the utilization of DEA benefits by an eligible child of a veteran is either his or her 18th birthday or the date of his or her successful completion of secondary schooling, whichever is the earlier date. 38 C.F.R. § 21.3041(a). This beginning date may be tolled (i.e. delayed) in certain situations, including when the veteran's permanent and total disability rating is assigned after the child reaches age 18, but before the child becomes 26 years of age. 38 C.F.R. § 21.3041(b)(2)(ii). In that case, the beginning date of eligibility will be the effective date of the permanent and total disability rating or the date of notification to the veteran of such rating, whichever is more advantageous to the child. Id. The basic ending date for DEA benefits is the child's 26th birthday. 38 U.S.C.A. § 3512; 38 C.F.R. § 20.3041(c). However, if the effective date of the permanent and total disability rating, or notification of the rating, occurs when the child is between the ages of 18 and 26, the ending date will be 8 years from such effective date or date of notification, whichever is more advantageous to the child. 38 U.S.C.A. § 3512; 38 C.F.R. § 20.3041(d)(1). The ending date can be extended if, among other things, the child suspends his or her program due to conditions determined by VA to have been beyond her control; for example, if immediate family obligations beyond her control require her to take employment, or pursuit of her program is precluded because of her own illness, or she is ordered to active military duty or involuntarily ordered to full-time National Guard duty. 38 U.S.C.A. § 3512; 38 C.F.R. §§ 20.3041(g), 21.3043. No person is eligible for educational assistance who reached his or her 26th birthday on or before the effective date of a finding of the Veteran's being permanently and totally disabled by service-connected disability. 38 C.F.R. § 21.3040(c). Further, no person is eligible for educational assistance beyond his or her 31st birthday, except as provided under 38 C.F.R. § 21.3041(g)(2). In no event may educational assistance be provided after the period of entitlement has been exhausted. Analysis The pertinent facts of this case are not in dispute and will be stated succinctly. The appellant was born in December 1971, and he is the Veteran's son. By a Decision Review Officer (DRO) decision dated in April 2011, the VARO in Seattle, Washington, increased the evaluation for the Veteran's service-connected diabetes mellitus, type II, from 20 percent to 100 percent and established eligibility to Dependents' Educational Assistance (DEA) benefits. The Veteran's total (100 percent) evaluation was noted to be permanent at that time, and both awards were assigned effective from October 4, 2006. In February 2012, the appellant submitted a completed VA Form 22-5490 (Application for Survivors' and Dependents' Educational Assistance), seeking VA education benefits under Title 38, Chapter 35. Later that month, his claim was denied by the Education Center at the Muskogee VARO, and, after he expressed disagreement with this determination, the present appeal ensued. In order to be eligible for benefits, the appellant would have to have not yet attained the age of 26 on the date on which the Veteran's status as permanently and total disabled became effective for VA purposes. As stated above, the evidence reflects that the appellant was born on in December 1971. Thus, he attained the age of 26 in December 1997. As the Veteran's permanent and total evaluation is effective from October 4, 2006, the appellant exceeded the age limit for eligibility prior to the Veteran the effective date of the Veteran's permanent and total evaluation. As noted above, no person is eligible for educational assistance who reached his or her 26th birthday on or before the effective date of a finding of the Veteran's being permanently and totally disabled by service-connected disability. 38 C.F.R. § 21.3040(c). Thus, the appellant is not eligible for DEA benefits. The Board notes that there are exceptions to the age limit of 26 for DEA benefits. The Board has considered these exceptions, as noted in 38 C.F.R. § 21.3041; however, they are not pertinent to the appellant. Extensions of ending dates are applicable where the beneficiary child is already in receipt of Chapter 35 educational assistance benefits and is pursuing his or her education, but has had to stop because of certain events beyond his or her control, such as if an eligible child is ordered to active duty or involuntarily ordered to full-time National Guard duty during his or her period of eligibility. Extensions of delimiting dates do not apply in the present matter because the Veteran was not granted eligibility for DEA benefits until after the appellant's 26th birthday. The appellant was never eligible for educational assistance, because he was already 26 years of age when the Veteran was found to be permanently and totally disabled. Therefore, the appellant was never an eligible child. The Board acknowledges the appellant's assertions that the Veteran potentially could have been granted a permanent and total evaluation prior to December 1997 (when he attained 26 years of age, and thus, became ineligible for DEA benefits) had his father's service records been declassified or had VA included his father's unit among those exposed to herbicides along the Korean Demilitarized Zone (DMZ) prior to that time. However, the appellant's assertions essentially constitute a theory of entitlement to equitable relief. In this respect, the Board is bound by applicable law and regulations when determining a claim for VA benefits. Here, the regulatory criteria governing eligibility for DEA benefits under Chapter 35 are specific, and the Board is bound by them. Pursuant to these criteria, there is no basis upon which to grant the appellant eligibility for DEA benefits under Chapter 35. In light of above, the Board finds that the appellant is simply not eligible to receive educational assistance benefits under Chapter 35 as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Where the law, rather than the facts, is dispositive, the benefit of the doubt provisions as set forth in 38 U.S.C.A. § 5107(b) are not for application. Additional note In denying this claim, the Board acknowledges the unfortunate circumstances of the appellant's case. Although the Board denies his claim as a matter of law as lacking legal merit, the Board is sympathetic to his claim. However, as stated above, the Board is without authority to grant it on an equitable basis and instead is constrained to follow the specific provisions of the law. See 38 U.S.C.A. § 7104 (West 2002); Taylor v. West, 11 Vet. App. 436, 440-441 (1998); Harvey v. Brown, 6 Vet. App. 416,425 (1994). The Secretary of VA, however, has discretionary equitable power to provide relief, and the appellant is free to apply to the Secretary of VA and request that he exercise his discretionary authority to grant the claim on an equitable basis. See 38 U.S.C.A. § 503 (West 2002); see also Darrow v. Derwinski, 2 Vet. App. 303, 304-306 (1992). ORDER Eligibility for DEA benefits under Chapter 35, Title 38, United States Code is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs