Citation Nr: 1626321 Decision Date: 06/30/16 Archive Date: 07/11/16 DOCKET NO. 14-27 296 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Atlanta, Georgia THE ISSUE Basic eligibility for VA Dependents' Educational Assistance benefits under the provisions of 38 U.S.C.A. Chapter 35. ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran had active service from January 1988 to May 1990 and from December 2004 to May 2006. He died in July 2006. The appellant is the Veteran's child. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 2013 administrative decision of the of the Atlanta, Georgia, Regional Office's Education Center (RO) which denied the appellant's eligibility for VA Dependents' Educational Assistance benefits under the provisions of 38 U.S.C.A. Chapter 35. The Board has reviewed the physical education file and both the Veterans Benefit Management System and the "Virtual VA" files. FINDINGS OF FACT 1. The Veteran died in a July 2006 motor vehicle accident. 2. A report from the Dekalb County, Georgia medical examiner states that at the time of his accident the Veteran was traveling at a high rate of speed, and his post mortem blood alcohol level was 0.192 grams per 100 milliliters. 3. Service connection has been denied for the cause of the Veteran's death. 4. Service connection was not in effect for any disability at the time of the Veteran's death. CONCLUSION OF LAW The appellant does not meet the basic eligibility requirements for VA Dependents' Educational Assistance benefits under the provisions of 38 U.S.C.A. Chapter 35. 38 U.S.C.A. § 3501(a) (West 2014); 38 C.F.R. § 21.3021(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION When an application for VA education benefits is received, VA has duties to notify and to assist except when a claim cannot be substantiated where there is either no legal basis for the claim or the undisputed facts render the claimant ineligible for the claimed benefit. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 21.1031, 21.1032 (2015). In this case, the facts are not in dispute. Resolution of the appellant's appeal is dependent on interpretation of the law and regulations pertaining to eligibility for VA Dependents' Educational Assistance benefits. As will be shown below, the evidence shows that the cause of the Veteran's death was not due to a service-connected disorder; service connection was not in effect for any disability at the time of his death; and the appellant is therefore not eligible for VA Dependents' Educational Assistance benefits. As further notice or assistance would not aid in substantiating this claim, any deficiencies in VA's notification and assistance provided to the appellant are rendered moot. Basic eligibility for Dependents' Educational Assistance benefits will be established for a child of a veteran who either died of a service-connected disability; has a total disability permanent in nature resulting from a service-connected disability; or died while a disability so evaluated was in existence. 38 U.S.C.A. § 3501(a)(1)(A) (West 2014); 38 C.F.R. § 21.3021(a) (2015). The Veteran separated from active duty in May 2006. He died in a post service July 2006 motor vehicle accident. In an April 2011 rating decision VA denied entitlement to service connection for the cause of the Veteran's death. A timely appeal to that decision was not perfected; hence, that rating decision is final and binding. 38 U.S.C.A. § 7105 (West 2014). At the time of the Veteran's death, service connection was not in effect for any disability. In her July 2014 Appeal to the Board (VA Form 9), the appellant advanced that "there has to be something that [the Veteran] qualified for to help assistance (sic) with his children in their educational needs." The Veteran did not die due to service-connected disability and service connection was not in for any disorder at the time of his death. Given these facts, the law is dispositive of the issue on appeal, and the appellant's claim must be denied because of the absence of legal merit or entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement). The Board acknowledges the Veteran's service to our country, to include his combat service in Iraq. The Board, however, is bound by the law. This decision is dictated by the relevant statutes and regulations. The Board is without authority to grant benefits simply because it might perceive the result to be equitable. 38 U.S.C.A. §§ 503, 7104 (West 2014); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Based on the undisputed facts of this case, the appellant's eligibility for VA Dependents' Educational Assistance benefits under the provisions of 38 U.S.C.A. Chapter 35 cannot be established. The claim is denied. ORDER The appellant's eligibility for VA Dependents' Educational Assistance benefits under the provisions of 38 U.S.C.A. Chapter 35 is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs