Citation Nr: 1803693 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 17-07 252 ) DATE ) ) On appeal from the Department of Veterans Affairs Education Center in Muskogee, Oklahoma THE ISSUE Entitlement to Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38 United States Code, beyond October [REDACTED], 2007. ATTORNEY FOR THE BOARD A. Keninger, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to February 1970. The appellant is the Veteran's adult daughter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 decision of the Department of Veteran's Affairs (VA) Education Center in Muskogee, Oklahoma, which denied the benefit sought on appeal. This appeal 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). FINDINGS OF FACT 1. The appellant, who is the Veteran's daughter, was born in October 1981. 2. The Veteran passed away in February 1990. 3. The appellant turned 18 years of age in October 1999 and turned 26 in October 2007, which is her delimiting date for benefit eligibility. 4. In an October 2015 rating decision, the Philadelphia, Pennsylvania Regional Office (RO) granted entitlement to service connection for the Veteran's cause of death and granted entitlement to DEA, both effective February 2, 1990. 5. In March 2016, the appellant filed a claim for DEA benefits for classes she planned to take at Bayamon Central University from August 2016 to December 2016. 6. In September 2016, the RO determined that the appellant was entitled to Chapter 35 DEA benefits for only the period from October [REDACTED], 1999 to October [REDACTED], 2007 (i.e., between her 18th and 26th birthdays). CONCLUSION OF LAW The criteria for basic eligibility for Chapter 35 DEA benefits beyond October [REDACTED], 2007 have not been met. 38 U.S.C. § 3501, 3512 (2012); 38 C.F.R. §§ 21.3021, 21.3040, 21.3041, 21.3043 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The VCAA, codified in part at 38 U.S.C. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Regulations relating to notice and assistance, specific to education benefits, are found at 38 C.F.R. §§ 21.1031, 21.1032. The Board notes that the appellant has been notified of the reasons for the denial of her claim, and has been afforded full opportunity to present evidence and argument with respect to the claim. The Board finds the duty to notify and assist has been met. In any event, it is noted that the VCAA is not applicable to cases, such as this one, where resolution of the claim is based on statutory interpretation and the facts are not in dispute; in other words, the law is determinative of the issue on appeal. See Manning v. Principi, 16 Vet. App. 534, 542 (2002); see also Smith v. Gober, 14 Vet. App. 227 (2000). Moreover, as specifically applied to education cases such as this, VA does not have a duty to notify and assist claimants when a claim cannot be substantiated because there is no legal basis for the claim, or undisputed facts render the claimant ineligible for the claimed benefits, or there is not a reasonable possibility that any assistance VA would provide would substantiate the claim. 38 C.F.R. §§ 21.1031(b), 21.1032(d). II. Effective Date of DEA The appellant is claiming entitlement to benefits under Chapter 35, also known as DEA. She filed an application for DEA benefits in March 2016 and submitted an enrollment certification from Bayamon Central University for August 2016 to December 2016. The appellant, who was born in October 1981, is the daughter of the Veteran, who died in February 1990. In a rating decision dated in October 2015, the RO granted service connection for the cause of the Veteran's death, effective in February 1990. The RO emphasized that it previously denied the claim, but that it adjudicated the claim anew in light of the federal court order in Nehmer v. Department of Veterans Affairs. In that regard, VA has promulgated special rules for the effective dates for the grant of presumptive service connection based on exposure to herbicides, pursuant to orders of a United States District Court in the class action of Nehmer v. United States Department of Veteran's Affairs. See 38 C.F.R. § 3.816; see also Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). The December 2010 rating decision also awarded basic eligibility to DEA under Chapter 35. Educational assistance is available to a child of a Veteran who has died of a service-connected disability. 38 U.S.C. § 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; the period of eligibility ends on the child's 26th birthday. 38 U.S.C. § 3512(a); 38 C.F.R. § 21.3041(b). Beyond that eight-year period, from the child's 18th to the 26th birthdays, an extension of the eligibility period may be granted if an eligible child suspends pursuit of his or her program due to conditions that VA determines were beyond the child's control, as outlined in 38 C.F.R. § 21.3043. 38 C.F.R. 21.3041(g)(1). VA may consider the following circumstances as beyond the eligible person's control: (a) While in active pursuit of a program of education, he or she is appointed by the responsible governing body of an established church, officially charged with the selection and designation of missionary representatives, in keeping with its traditional practice, to serve the church in an official missionary capacity and is thereby prevented from pursuit of his or her program of studies; (b) Immediate family or financial obligations beyond his or her control require the eligible person to take employment, or otherwise preclude pursuit of his or her program; (c) Unavoidable conditions arising in connection with the eligible person's employment which preclude pursuit of his or her program; (d) Pursuit of his or her program is precluded because of the eligible person's own illness or illness or death in his or her immediate family; (e) Active duty, including active duty for training in the Armed Forces. 38 C.F.R. § 21.3043. Notwithstanding this potential extension provision, no child is eligible for educational assistance beyond her 31st birthday, except that if the child's 31st birthday occurs during a term (quarter or semester), VA may extend the period of eligibility to the end of that term. 38 U.S.C. § 3512(c); 38 C.F.R. §§ 21.3040(d), 21.3041(g)(2). An extension of the eligibility period may also be granted if an eligible child serves on duty in the Armed Forces, or is ordered to active duty or involuntarily ordered to full-time National Guard duty after September 10, 2001. 38 U.S.C. § 3512(a)(5), (h); 38 C.F.R. §§ 21.3041(c), (h). There are no other provisions for extending the period of eligibility, except as noted herein. In this case, as previously noted, the Veteran died in February 1990 and the RO, in an October 2015 rating decision, granted service connection for the cause of his death and also granted basic eligibility for Chapter 35 DEA benefits, both effective from February 1990. Documentation in the file shows that the appellant turned 18 years of age in October 1999, after the Veteran's death, and she turned 26 years of age in October 2007. She initially applied for Chapter 35 DEA benefits in March 2016. She submitted an enrollment certification from Bayamon Central University for August 2016 to December 2016. In a September 2016 decisional letter, the RO denied the appellant's claim for DEA benefits from August 2016 to December 2016 for classes at Bayamon Central University. The RO notified her that she could only use the benefits before October [REDACTED], 2007 (i.e., by her 26th birthday). The RO explained that her eligibility window was between October [REDACTED], 1999 and October [REDACTED], 2007 (i.e., her 18th and 26th birthdays). Applying the law to the undisputed facts of this case, the Board finds that the appellant is not entitled to DEA benefits under Chapter 35 beyond October [REDACTED], 2007, the date of her 26th birthday. Her period of eligibility began on her 18th birthday and ended on her 26th birthday, in accordance with 38 U.S.C. § 3512(a) and 38 C.F.R. § 21.3041(b), and there is no evidence that she met the conditions for extension of the eligibility period beyond October [REDACTED], 2007. That is, it is not shown, nor does the appellant claim, that she was in pursuit of a program of education that was suspended for reasons beyond her control, or that she had service in the military. There is no evidence that she had a period of active duty or was engaged in church or missionary work during the applicable time period. Similarly, there is no indication that conditions or employment or her own illness or illness of a family member precluded her pursuit of educational opportunities. The appellant has not directly contended that immediate family or financial obligations beyond her control required her to take employment or otherwise precluded her pursuit of educational opportunities. In sum, considering the facts of this case and the applicable law, the Board finds that the appellant is not eligible for Chapter 35 DEA benefits beyond October [REDACTED], 2007, her 26th birthday. As noted, the Board is bound by applicable statutes, VA regulations, and precedent opinions of the General Counsel of VA. See 38 U.S.C. §§ 511(a), 7104; 38 C.F.R. § 20.101. There is no interpretation of the law that will result in the appellant being deemed eligible for Chapter 35 DEA benefits beyond October 7, 2007. As the law is dispositive in this case, and the relevant facts are not in dispute, the appellant's appeal must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Hence, the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C. § 5107(b). ORDER Entitlement to DEA benefits under Chapter 35, Title 38, United States Code, beyond October 7, 2007, is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs