Citation Nr: 1334349	
Decision Date: 10/29/13    Archive Date: 11/06/13

DOCKET NO.  13-06 138A	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to the retroactive payment of Survivors' and Dependents' Educational Assistance (DEA), under Title 38, Chapter 35 of the United States Code, for the period prior to June 4, 2011.


ATTORNEY FOR THE BOARD

J. Castillo, Associate Counsel
 

INTRODUCTION

Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket.

The Veteran served on active duty from September 1976 to September 1980.  The appellant is the Veteran's estranged wife.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2012 decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied the appellant's application for education benefits for the period prior to June 4, 2011.

 
FINDINGS OF FACT

1.  In a December 2008 rating decision, the Veteran was granted a permanent and total disability rating, effective July 2, 2008.

2.  The appellant's application for DEA benefits was received on June 4, 2012. 


CONCLUSION OF LAW

The criteria for entitlement to payment of DEA benefits under the provisions of Chapter 35 for the period prior to June 4, 2011, have not been met.  38 U.S.C.A. §§ 3501, 3512, 5113 (West 2002); 38 C.F.R. §§ 21.1029, 21.3021, 21.3046, 21.4131 (2013). 

Notice and Assistance
VA has no duty to notify or assist in a claim for educational benefits where the claim cannot be substantiated because there is no legal basis for the claim, or undisputed facts render the claimant ineligible for the claimed benefit.  38 C.F.R. §§ 21.1031, 21.1032(d).

The pertinent facts are not in dispute; resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to payment of education benefits.  See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002); VAOPGCPREC 5-2004 (June 23, 2004).  No further notice or assistance is required for a fair adjudication.


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The appellant has been awarded DEA benefits for her community college education beginning in June 4, 2011.  She seeks entitlement to payment for DEA benefits for the portion of her community college education which occurred before June 4, 2011.

The appellant had multiple enrollment periods between January 18, 2011, and December 15, 2012, at El Centro College, and multiple enrollment periods between August 26, 2009, and December 18, 2010, at Milwaukee Area Tech College. 

The appellant contends that she is entitled to DEA benefits because she was unaware of the Veteran's 100 percent disability rating and the availability of DEA benefits.

The appellant is eligible for DEA benefits as the spouse of a Veteran with a permanent and total disability rating.  38 C.F.R. § 21.3021(a)(3)(i). 

The commencing date of an original award of educational assistance benefits generally will be the latest of the following dates: (a) the beginning date of eligibility; (b) one year before the date of the claim for DEA benefits; (c) the date certified by the educational institution; or (d) the effective date of the course approval, or one year before the date VA receives the approval notice, whichever is later.  38 C.F.R. § 21.4131(d)(1).

The beginning date of eligibility for a spouse is (a) the effective date of the permanent and total disability rating, (b) the date of notification, or (c) any date between the between the effective date and date of notification.  38 C.F.R. § 21.3046(a).

The Veteran was granted a permanent and total disability rating effective July 2, 2008, in a December 2008 rating decision.  The Veteran was notified of that decision on December 18, 2008.  

The beginning date of the appellant's eligibility is any day between July 2, 2008, and December 18, 2008.

The date of a claim for DEA benefits is the date VA receives a formal or informal claim.  38 C.F.R. § 21.1029(b).

On July 7, 2011, the RO received a fax from the appellant which included the phase: "I am a student I need assistance."  The fax pertained to an unrelated claim for special apportionment.  In the fax, the appellant requested the expedited review of her apportionment claim on the basis of financial hardship.  She indicated a desire for financial assistance for rent, utilities, bus fare, household cleaning items, clothes, and blankets.  

While the fax indicated that the appellant was a student, it did not communicate a desire for educational assistance.  The fax was not an informal claim for DEA benefits.  38 C.F.R. § 20.1030(e).

The RO received the appellant's claim for educational assistance on June 4, 2012, and the RO awarded DEA benefits effective June 4, 2011, one year prior to the date of receipt of the claim.  
 
This date is the later of the appellant's date of eligibility (December 18, 2008); the date certified by the school at issue (enrollment on August 26, 2009 and January 18, 2011); and one year prior to the date of receipt of her claim (June 4, 2011).  38 C.F.R. § 21.4131(d)(1),

The appellant contends that she is entitled to DEA benefits for a period of education that occurred before the commencing date because she was unaware that DEA benefits were available.  This argument essentially constitutes a theory of entitlement to equitable relief.  The Board, however, is without authority to grant educational benefits on an equitable basis and instead is constrained to follow the specific provisions of the law.  See 38 U.S.C.A. § 7104; Taylor v. West, 11 Vet. App. 436, 440-441 (1998).

The legal criteria in this case are clear and the pertinent facts are not in dispute. Although the Board is sympathetic to the appellant's claim, entitlement to educational assistance benefits is predicated on specific and unambiguous requirements, which have not been met.


ORDER

Entitlement to payment of DEA benefits under the provisions of Chapter 35 for the period prior to June 4, 2011, is denied.





____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs