Citation Nr: 1802333	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  15-14 342A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUE

Entitlement to Chapter 35 Dependents' Educational Assistance (DEA) benefits.


ATTORNEY FOR THE BOARD

Andrew Mack, Counsel


INTRODUCTION

The Veteran served on active duty from April 1965 to March 1967, and May 1967 to April 1968.  The appellant is the Veteran's daughter.  This appeal is before the Board of Veterans' Appeals (Board) from a January 2015 decision of a Department of Veterans Affairs (VA) Regional Office.  It has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

The Veteran does not have a total disability permanent in nature resulting from a service-connected disability, and the appellant was 38 years of age at the time of her December 2014 claim for Chapter 35 DEA benefits.  


CONCLUSION OF LAW

The criteria for eligibility for Chapter 35 DEA benefits are not met.  38 U.S.C. Chapter 35 (2012); 38 C.F.R. §§ 21.2020, 20.3021, 21.3040 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Under 38 U.S.C. Chapter 35, a program of education or special restorative training (DEA benefits) may be authorized for certain eligible persons, including a child of a living Veteran, serviceman or servicewoman who has a total disability permanent in nature resulting from a service-connected disability.  38 U.S.C. Chapter 35; 38 C.F.R. §§ 21.3020, 20.3021(a)(1).  No person is eligible for educational assistance who reached his or her 26th birthday on or before the effective date of a finding of permanent total service-connected disability.  38 C.F.R. § 21.3040(c).

As reflected in her March 2015 notice of disagreement and May 2015 substantive appeal, the appellant has asserted that she should be eligible for Chapter 35 DEA benefits should the Veteran's pending claim for a permanent and total rating for service-connected disability be granted.  In an August 2015 rating decision, the Veteran was denied a rating greater than 30 percent for his only service-connected disability of posttraumatic stress disorder, and was also denied a total disability rating for individual unemployability due to service-connected disability.  The record does not reflect, and the appellant has not asserted, that the Veteran in fact has been determined by VA to have a total disability permanent in nature resulting from service-connected disability.  Also, as noted by the appellant in her December 2014 claim, she was 38 years of age at the time of that claim.  

In short, the record does not reflect, and the appellant has not asserted, any legal basis on which eligibility for Chapter 35 DEA benefits may be granted in this case.  Accordingly, lack of entitlement under the law, rather than a contested factual matter, is dispositive of the claim, and eligibility for Chapter 35 DEA benefits must be denied.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


ORDER

Entitlement to Chapter 35 Dependents' Educational Assistance (DEA) benefits is denied.




____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs