Citation Nr: 1753799 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 14-35 945 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to Dependents' Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35. WITNESSES AT HEARING ON APPEAL The Appellant and the Veteran's Spouse ATTORNEY FOR THE BOARD A. Kutrolli, Associate Counsel INTRODUCTION The Veteran served with the United States Air Force from March 1966 to February 1970. Unfortunately, he passed away many years ago. The appellant is the Veteran's son. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 18, 2014 decision of the New Buffalo, New York Department of Veterans Affairs (VA) Regional Office (RO) that denied DEA benefits to the appellant. A Board hearing was held before the undersigned at the RO on April 13, 2015. FINDINGS OF FACT 1. The appellant is the Veteran's son and was a student at Long Island University from 1996 to 2000. 2. The Veteran died on July [REDACTED], 1981; effective August 31, 2010, dependency, indemnity and compensation (DIC) was awarded on the basis of service connection for cause of the Veteran's death. 3. The appellant was born on July [REDACTED], 1979; and his claim for Chapter 35 DEA benefits was received on March 10, 2014. CONCLUSION OF LAW The criteria for eligibility for DEA benefits have not been met. 38 U.S.C.A. §§ 3501, 3512, 5113 (West 2014); 38 C.F.R. §§ 21.3040, 21.3041, 21.4131 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Educational assistance is available to a child of a veteran who has died of a service-connected disability. 38 U.S.C.A. § 3501; 38 C.F.R. §§ 3.807(a)(4), 21.3021(a)(1). For purposes of Chapter 35, "child" means the son or daughter of a veteran who meets the requirements of 38 C.F.R. § 3.57, except as to age and marital status. 38 C.F.R. §§ 3.807(d)(1), 21.3021(b). Under Chapter 35, where eligibility is derived as the result of a veteran's death, a child's period of eligibility generally begins on the child's 18th birthday, or upon successful completion of the child's secondary schooling, whichever first occurs. 38 U.S.C.A. § 3512(a); 38 C.F.R. § 21.3041(b). The period of eligibility ends on the child's 26th birthday; however, VA will extend an eligible child's period of eligibility in limited circumstances, not applicable here. The Appellant contends that he should receive retroactive payment under DEA for a prior educational program. He began attending Long Island University in September 1996, where he ultimately received a Bachelor of Arts degree in September 2000 (per a transcript from Long Island University). Appellant was 17 years old when he starting attending Long Island University, and 21 years old when he graduated. Generally, DEA benefits are paid when an education program commences if a claim is received within one year of commencing an education program. 38 C.F.R. § 21.4131(d). An eligible person's application for DEA benefits under Chapter 35 will be considered as having been filed on his eligibility date, if: (1) The eligibility date is more than one year before the date of the initial rating decision that establishes either that the Veteran's death is service-connected, or that the Veteran has a permanent and total disability; (2) the eligible person files his original application for benefits under Chapter 35 with VA within one year of the initial rating decision; (3) the eligible person claims educational assistance for pursuit of an approved program of education for a period that is more than one year before the date VA receives his original claim; (4) VA either received the original application on or after November 1, 2000; or received the original application and as of November 1, 2000, either (A) had not acted on it; or (B) had denied it in whole or in part, but the claimant remained entitled to pursue available administrative and judicial remedies as to the denial; and (5) the eligible person would have been eligible to educational assistance under Chapter 35 if he had filed a claim on his eligibility date. 38 U.S.C.A. § 5113; 38 C.F.R. § 21.4131(e). In this case, DIC based on service connection for the cause of the Veteran's death was granted in a rating decision dated February 22, 2013. The RO assigned an effective date for the grant of October 25, 2011. In March 2014, the RO amended the effective date to August 31, 2010; on the basis of a liberalizing regulation that recognized ischemic heart disease as a presumptive disease for Veteran's exposed to herbicides in Vietnam. 75 Fed. Reg. 53202-16 (Aug 31, 2010) (codified at 38 C.F.R. § 3.309(e)); see 38 C.F.R. § 3.114 (2017) (providing an effective as early as the date of a liberalizing law or issue). There has been no reported disagreement with the effective date of the grant of service connection for DIC. The appellant's testimony and statements as well as those of his mother, the Veteran's surviving spouse, are based on the inequity of denying him DEA benefits. The government, including VA, can only pay benefits as authorized by Congress. See Fritz v. Nicholson, 20 Vet. App. 507, 511 (2006). The Courts have held that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing OPM v. Richmond, 496 U.S. 414, 426 (1990)). Eligibility for DEA benefits arises from the grant of DIC; hence, DEA could not generally be granted prior to the effective date of the grant of DIC. 38 U.S.C.A. § 5113(a) (providing that education benefits shall to the extent feasible correspond to the effective dates of awards of disability compensation). The appellant; however, was over the age of 26 on the effective date of the DIC grant. As noted, 38 U.S.C.A. § 5113, would provide for benefits prior to the claim for education benefits, but only if the claimant was entitled to the benefit if the application had been submitted earlier. The appellant in this case would not have been eligible at the time he was attending college (1996 to 2000) because DIC had not been established. As this claim must be denied as a matter of law, the benefit of the doubt rule is not for application. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to DEA benefits under 38 U.S.C., Chapter 35 is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs