Citation Nr: 1329567 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 11-00 123A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Basic eligibility for Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code. WITNESSES AT HEARING ON APPEAL Veteran and Appellant ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran had active service from July 1963 to June 1967. The Appellant is the Veteran's adult daughter. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Processing Office in Buffalo, New York, which denied a claim for benefits under the Dependents' Educational Assistance (DEA) program. The Appellant submitted a Notice of Disagreement (NOD) in October 2010; a Statement of the Case (SOC) was issued in December 2010; and in January 2011, the Veteran submitted a timely VA Form 9 (substantive appeal). Jurisdiction of the appeal was subsequently transferred to the Regional Office (RO) in Newark, New Jersey. The Appellant testified before the undersigned Veterans Law Judge in June 2011. A transcript of that proceeding has been associated with the claims file. Subsequent to the June 2011 hearing, the Appellant submitted additional evidence without a waiver of initial RO consideration. See 38 C.F.R. § 20.1304 (2012). However, as none of this evidence is pertinent to the claim, remand for RO consideration of this evidence is not necessary. See id. at (c). Specifically, evidence is not pertinent if it does not relate to or have a bearing on the appellate issue. Id. The evidence submitted without waiver includes a September 2011 statement from the Appellant to her congressman, in which she reiterates arguments previously asserted in other statements/testimony of record. In addition to the September 2011 statement, the Appellant also submitted and a copy of a letter from the Congressman to the Board and copies of her diploma and her official academic record. Neither of these documents have any bearing on the Appellant's claim for DEA benefits. The Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file, and there are currently no pertinent records that are not also in the paper claims file. FINDINGS OF FACT 1. In a December 2007 rating decision, the RO granted the Veteran's claim for individual unemployability (TDIU), effective May 31, 2006. 2. The December 2007 decision also established basic eligibility for DEA benefits for eligible dependents, as of May 31, 2006, based on the finding that the Veteran's service-connected disabilities were totally and permanently disabling in nature. 3. In September 2010, the Appellant, who is the Veteran's adult daughter, filed a claim for DEA benefits under Chapter 35. 4. The Appellant was born in September 1974. 5. The Appellant reached her 26th birthday prior to the effective date of the finding of permanent total disability for the Veteran. She is not a proper claimant under the statutory and regulatory provisions pertaining to VA DEA benefits. 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); 38 C.F.R. §§ 21.3021, 21.3040, 21.3041 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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 on the fact that the Appellant was born in September 1974; therefore, she is not entitled to the benefits sought as a matter of law. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Analysis of Eligibility for DEA Benefits 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) (2012). 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) (2012). 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) (2012). 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) (2012). In the instant case, the Appellant is the daughter of the Veteran. She was born in September 1974. By way of history, the Veteran submitted a VA Form 21-8940 (Individual Unemployability Claim Application, or TDIU) on May 31, 2006. In December 2006, the RO denied the Veteran's claim for TDIU; he submitted an NOD in February 2007. In a December 2007 rating decision, the RO revised the prior decision and granted TDIU (based upon service-connected headache and back disorders), effective May 31, 2006. The December 2007 decision also established basic eligibility for DEA benefits for eligible dependents, based on the finding that the Veteran's service-connected disabilities were totally and permanently disabling in nature. In September 2010, at the age of 35, the Appellant filed a claim for eligibility for DEA benefits. In a September 2010 decision, the RO denied eligibility for DEA benefits, noting that the effective date of the Veteran's permanent and total disability was May 31, 2006, i.e., well after the Appellant's 26th birthday. The Appellant appealed that determination. In a November 2010 statement, the Appellant acknowledged that her father (the Veteran) was "not 100 percent disabled" at the time of her 26th birthday, but nonetheless asked that VA consider her claim "based on my father's time of 100% disability and not the average age of 26." On the November 2011 VA Form 9, the Appellant asserted that the denial of DEA benefits should be "corrected" due to her father's "late approval of being 100 percent disabled." Likewise, at the June 2011 hearing, the Appellant and Veteran stated that the laws addressing eligibility for DEA benefits should be changed to reflect the date of total and permanent disability, irrespective of the dependent's age. They also testified that the Appellant had suspended pursuing her higher education for various periods of time in order to assist her father with his medical issues, but also acknowledged that the Veteran was gainfully employed up until 2003. In essence, the Appellant maintains that she should have been eligible for DEA benefits beginning with the date upon which her father was deemed permanently and totally disabled (i.e., May 2006), irrespective of the fact that she was over the age of 26 at that time. See also September 2011 Statement from Appellant. However, as noted above, eligibility for Chapter 35 benefits 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. (Emphasis added). See 38 C.F.R. § 21.3040(c). In addition, the other 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. Thus, in the instant case, as the Veteran's permanently disability rating was not revoked, the general ending date applicable to the Appellant would be her 26th birthday. Again, that birthday occurred in September 2000, many years prior to the December 2007 rating decision that granted a permanent and total rating and the assigned effective date of May 31, 2006. As noted above, 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 finding of the Veteran's total and permanent disability goes into effect. In this case, the record clearly shows that the rating went into effect in May 2006, nearly six years after the Appellant had turned 26 years old in September 2000. Consequently, none of the aforementioned exceptions apply to her. Accordingly, she is not eligible for DEA benefits. The Board sympathizes with the Appellant's financial challenges and her strong motivation to further her education. However, it is bound by the applicable law and regulations. As this applicable authority does not allow for eligibility for DEA benefits for a Veteran's child who was already over the age of 26 at the time that the Veteran became totally and permanently disabled, there is no legal basis for granting such benefits 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 DEA benefits under Chapter 35, Title 38, Unite States Code, is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs