Citation Nr: 1510688 Decision Date: 03/13/15 Archive Date: 03/24/15 DOCKET NO. 13-06 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38 of the United States Code. WITNESS AT HEARING ON APPEAL The appellant and the Veteran ATTORNEY FOR THE BOARD Bonnie Yoon, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from January 1966 to January 1969. The appellant is his daughter. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 administrative decision issued by the Department of Veterans Affairs (VA) Education Center in Muskogee, Oklahoma, which denied the appellant's claim for DEA benefits. In March 2014, the appellant testified at a hearing before the undersigned Veterans Law Judge at the Regional Office in Phoenix, Arizona, where the appellant resides. A transcript of the hearing is of record. FINDINGS OF FACT 1. The appellant was born in October 1968; she reached her 26th birthday in October 1994. 2. The Veteran was declared permanently and totally disabled on April 25, 1996. CONCLUSION OF LAW The criteria for entitlement to DEA benefits under Chapter 35, Title 38 of the United States Code are not met. 38 U.S.C.A. §§ 3501(a)(8), 3512 (West 2002); 38 C.F.R. §§ 21.3021, 21.3040, 21.3041 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a). Here, however, because the record shows that undisputed facts make the appellant ineligible for the benefits claimed, VA's duties to notify and assist do not apply. See Manning v. Principi, 16 Vet. App. 534, 542-543 (2002); see also VAOPGCPREC 5-2004. Irrespective of the foregoing, the Board notes that appellant has been notified of the reasons for the denial of the claim on appeal and has been afforded the opportunity to present evidence, argument, and testimony in connection with her claim. Analysis 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 her status as the offspring 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. Unfortunately, however, under applicable law, 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 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. In the present case, the appellant was born in October 1968. She turned 18 in October 1986 and 26 in October 1994. A May 2011 rating decision granted entitlement to an evaluation of 100 percent for the Veteran's service-connected coronary artery disease effective April 25, 1996, the date of receipt of his claim for service connection for a heart condition. An evaluation of 60 percent was assigned from November 1, 1996. The Veteran was also granted a total disability evaluation based on individual unemployability (TDIU) effective November 1, 1996. Thus, the Veteran had a total disability permanent in nature resulting from a service-connected disability effective April 25, 1996. However, as that date is subsequent to the appellant's 26th birthday, she is ineligible for Chapter 35 DEA benefits as a matter of law. The appellant contends that she should be entitled to receive DEA benefits as the Veteran's disability occurred in 1968 when he was exposed to Agent Orange in service. The Board acknowledges the appellant's contentions that the Veteran had significant damage to his health before April 1996 and that Veteran would have gone to the doctor sooner had he known he was exposed to Agent Orange earlier. The appellant is essentially asserting that benefits should be granted on an equitable basis. The Board has no authority to grant claims on an equitable basis; instead, the Board is constrained to follow specific provisions of law. 38 U.S.C.A. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The pertinent legal authority governing entitlement to DEA benefits is clear and specific: a person may not be found eligible for such benefits under circumstances where he or she reached his or her 26th birthday on or before the effective date of the finding of the Veteran being permanently and totally disabled by service-connected disability. It is important to note that any potential argument that the Veteran is entitled to an earlier effective date for his total and permanent disability rating, is not the appellant's to make. Any claim for an earlier effective date must come from the Veteran with regard to the rating decision which granted him benefits, and not from the appellant. The Board acknowledges 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 she 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. While the Board is sympathetic to the appellant's contentions, it lacks legal authority to award benefits outside the scope of the law. See 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. ORDER Entitlement to DEA benefits under Chapter 35, Title 38 of the United States Code is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs