Citation Nr: 1634971 Decision Date: 09/07/16 Archive Date: 09/20/16 DOCKET NO. 14-20 948 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code. ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to June 1969. The appellant is the Veteran's son. This matter is on appeal from a December 2013 determination by the St. Louis, Missouri, Regional Office's Education Center (RO). The appellant indicated that he desired a hearing before a Veterans Law Judge on his substantive appeal received in May 2014. The appellant was scheduled for a hearing in August 2014 and was notified in a letter dated in June 2014. Thereafter, the appellant was rescheduled for a hearing in October 2014 and was notified in a letter dated in July 2014. The appellant requested a postponement of the hearing in a letter received in July 2014. The appellant was rescheduled for a hearing August 2015 and was notified in a letter dated in June 2015. The record reflects that the appellant did not appear for the hearing. Therefore, his request for a hearing is considered withdrawn. 38 C.F.R. § 20.704(d) (2015). FINDINGS OF FACT 1. The record reflects the appellant was born in April 1981. 2. The Veteran was found to have permanent and total disability effective October 1, 2010, and basic eligibility to DEA was established from September 21, 2010. 3. The appellant reached his 26th birthday prior to the effective date of the finding of basic eligibility to DEA. CONCLUSION OF LAW The criteria for entitlement to DEA benefits under Chapter 35 have not been met. 38 U.S.C.A. §§ 3501, 3512 (West 2014); 38 C.F.R. §§ 21.3021, 21.3030, 21.3040, 21.3041 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that because the application of the law to the undisputed facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is necessary. See Mason v. Principi, 16 Vet. App. 129 (2002). The Board adds that general due process considerations have been satisfied. See 38 C.F.R. § 3.103. In pertinent part, the appellant has been provided ample opportunity to present evidence and argument in support of this claim, and has in fact done so to include in his December 2013 notice of disagreement, a December 2013 statement, and May 2014 substantive appeal. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). The appellant is seeking DEA benefits under Chapter 35, Title 38, United States Code. Basic eligibility for Chapter 35 benefits for the child or surviving spouse of a Veteran is established in one of several ways: (1) the Veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the Veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the Veteran's death; or (4) the veteran died as a result of a service-connected disability. 38 U.S.C.A. §§ 3500, 3501, 3510; 38 C.F.R. § 3.807. In this case, the appellant is seeking DEA benefits based upon his father being permanently and totally disabled. Further, the record reflects the Veteran, his father, was found to be permanently and totally disabled effective October 1, 2010. The RO noted that he had basic eligibility under 38 U.S.C. Chapter 35 from September 21, 2010. No other basis for DEA benefits are demonstrated by the record. The basic beginning date of an eligible child's period of eligibility for Chapter 35 education assistance is his/her 18th birthday or successful completion of secondary schooling, whichever occurs first. In certain circumstance, an eligible child may commence their period of eligibility prior to the 18th birthday. The basic ending date (delimiting date) is the eligible person's 26th birthday. 38 U.S.C.A. § 3512(a); 38 C.F.R. § 21.3040(a), (b), (c). The Board acknowledges that in certain situations, the delimiting date may be modified or extended beyond a claimant's 26th birthday, but generally not past his or her 31st birthday. 38 U.S.C.A. § 3512; 38 C.F.R. §§ 21.3040(d), 21.3041(d), (e). Where, the Veteran's death occurs after the child's 18th birthday but before the child's 26th birthday, the child can elect as the beginning date for the period of eligibility either the date of the Veteran's death or the date of VA's decision that the Veteran's death was service-connected. 38 C.F.R. § 21.3041(b)(2). The period of eligibility then ends eight years after the date elected, but generally shall not extend beyond the child's 31st birthday. 38 C.F.R. §§ 21.3040(d); 21.3041(g). If an eligible person suspends his/her educational program due to conditions determined by VA to have been beyond his or her control, the period of eligibility may be extended by the number of months and days intervening the date the suspension began and the date the reason for suspension ceased to exist. 38 C.F.R. § 21.3043. The Board further notes that basic eligibility for Chapter 35 benefits requires that the claimant must not reach his or 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). In this case, the record reflects the appellant was born in April 1981. Therefore, the appellant reached his 26th birthday prior to the effective date of the finding of basic eligibility under Chapter 35 which was September 21, 2010. As such, he has no legal entitlement to the benefits sought on appeal. The Board acknowledges that the appellant reports that he really needed the funding for his education, that he wished he knew about the assistance, and that he was, at a point, a homeless college student. The Board is sympathetic to the appellant, but for the purposes of this case it must go by the effective date assigned for the Veteran's permanent and total rating. As such, the appellant's arguments essentially constitute a theory of equitable relief. The Board, however, is without authority to grant this claim on an equitable basis and instead is constrained to follow the specific provisions of law. See 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). For these reasons, the Board concludes the appellant's claim for DEA benefits must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (when the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). ORDER Entitlement to DEA benefits under Chapter 35, Title 38, United States Code is denied. ____________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs