Citation Nr: 18140035 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 16-17 222 DATE: October 2, 2018 ORDER Entitlement to an earlier commencement date for the award of Dependents’ Educational Assistance (DEA) education benefits is granted subject to the laws and regulations governing monetary awards. Entitlement to retroactive payments for DEA benefits under Chapter 35, Title 38 United States Code is denied. FINDINGS OF FACT 1. The appellant filed an October 17, 2014 informal claim for entitlement to DEA education benefits. 2. The RO received the appellant’s formal application for DEA education benefits on March 13, 2015. 3. A January 2012 rating decision granted eligibility to DEA benefits effective, September 24, 1992; the Veteran’s spouse was notified of this decision in May 2012. CONCLUSIONS OF LAW 1. The criteria for an earlier commencement date of October 17, 2013, for the award of DEA education benefits have been met. 38 C.F.R. § 21.4131. 2. The criteria for entitlement to Dependents’ Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code, prior to October 17, 2013 have not been met. 38 U.S.C. §§ 503, 511, 512 (a), 3500, 3501, 3512, 5113, 7104 (West 2014); 38 C.F.R. §§ 2.7 (c), 3.159, 21.3020, 21.3021, 21.3040, 21.3041, 21.3046, 21.4131 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Entitlement to an earlier commencement date for the award of DEA education benefits. The Board finds an earlier commencement date for the award of DEA benefits is warranted. By way of background, an April 2015 certificate of eligibility granted the appellant DEA education benefits payable one year prior to her date of claim, March 13, 2015. As pertinent to the present appeal, the date of claim is the date on which a valid claim or application for educational assistance is considered to have been filed with VA, for purposes of determining the commencing date of an award of that educational assistance. 38 C.F.R. § 21.1029 (b). The commencing date of an award of DEA benefits under 38 U.S.C. Chapter 35 is generally no earlier than one year before the date that the application for such benefits is filed with VA. See 38 C.F.R. §§ 21.1029 (b), 21.4131(d). However, an eligible person’s application for such benefits will be considered as having been filed on his or her eligibility date if certain requirements are met, including (1) the eligibility date is more than one year before the date of the initial rating decision that establishes that the Veteran has a permanent and total disability, and (2) the eligible person files his or her original application for DEA benefits under 38 U.S.C., Chapter 35 within one year of the initial rating decision establishing the existence of the service-connected permanent and total disability of the person from whom such eligibility is derived. 38 U.S.C. § 5113 (b); 38 C.F.R. § 21.4131 (e). The Board finds the appellant’s date of claim to be October 17, 2014, and therefore DEA educational benefits are payable beginning October 17, 2013. The appellant and her representative each submitted statements seeking DEA benefits received by the RO on October 17, 2014. The Board considers these statements an informal claim for DEA benefits. The appellant’s formal application for DEA benefits was subsequently received on March 13, 2015. The initial rating decision establishing the existence of the service-connected permanent and total disability of the Veteran was issued in January 2012. As the appellant’s claim was filed in October 2014, more than a year after the initial rating decision was issued a commencement date prior to one year before the date of claim cannot be awarded under 38 U.S.C. § 5113 (b); 38 C.F.R. § 21.4131 (e). As such, the Veteran’s commencement date for DEA education benefits is October 17, 2013. 2. Entitlement to retroactive payments for Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38 United States Code The appellant, the child of the Veteran, seeks retroactive eligibility to education benefits, asserting that she did not file for DEA benefits sooner because she did not know she was eligible. As noted above, the Board finds that the appellant’s commencing date was October 17, 2013, one year prior to the date of her application for DEA benefits. However, the Veteran is seeking DEA benefits for education courses taken from 2007 through 2011. Retroactive payment of DEA benefits may be awarded in certain circumstances. See 38 U.S.C. §§ 3512, 5113 (West 2014); 38 C.F.R. § 21.4131 (2017). Under 38 U.S.C. § 5113, if VA awards a veteran permanent and total disability and an eligible person files an application for DEA benefits within one year after the issuance of the RO decision awarding permanent and total disability, among other requirements, the DEA application may be considered as having been filed on the Veteran’s eligibility date. 38 U.S.C. § 5113 (b) (West 2014); see 38 C.F.R. § 21.4131 (e) (2017); Friedsam v. Nicholson, 19 Vet. App. 555, 562 (2006). In a January 2012 rating decision, basic eligibility for DEA benefits was awarded effective September 24, 1992. Notice was mailed to the Veteran’s spouse in May 2012. The appellant’s informal claim for DEA benefits was received October 17, 2014 and her formal application was received on March 13, 2015. In April 2015, the RO granted eligibility to DEA benefits and asked the appellant to choose an effective date. In a subsequent April 2015 letter the RO informed the appellant that the previous letter was sent in error. The appellant was advised she was not eligible to elect her effective date because the Veteran died prior to her eighteenth birthday. See 38 C.F.R. § 21.4131(e). The letter also advised that benefits were not payable prior to one year before her date of claim. As noted above, the Board has found the Veteran’s date of claim to be October 17, 2014 and benefits payable beginning October 17, 2013. The Board finds that the appellant’s commencement date, October 17, 2013, later than the Veteran’s effective date for permanent and total disability, September 24, 1992. See 38 C.F.R. § 21.4131 (d)(1) (2017). Thus, the question before the Board is whether the appellant met the criteria for retroactive payment of DEA benefits under 38 C.F.R. § 21.4131 (e). Under certain circumstances, an application can be considered filed on the veteran’s eligibility date for permanent and total disability. Here, for the appellant to qualify for that date, the VA must have received her original application for DEA benefits before January 2013, within one year of the RO’s decision awarding the Veteran permanent and total disability. VA, however, did not receive the appellant’s application for DEA benefits until October 2014. See 38 C.F.R. § 21.4131 (e) (2017). Accordingly, the Board finds that retroactive DEA benefits are not warranted. The Board acknowledges the appellant’s contention that she was not aware she could apply for DEA benefits because she did not receive notice of such. However, the Board notes notice was sent to the Veteran’s spouse noting her and the appellant’s eligibility for DEA benefits in May 2012. The appellant testified at her April 2018 Board hearing that she found out she was eligible for DEA benefits in 2012. As such, the appellant did have knowledge of DEA benefits within a year of the January 2012 rating decision granting eligibility for DEA benefits. Although the Board is truly sympathetic to the appellant’s contentions, it is bound by applicable law and regulations when determining a claim for VA benefits. The regulatory criteria governing eligibility for DEA benefits under Chapter 35 are specific, and the Board must adhere to them. Pursuant to these criteria, there exists no basis upon which to grant the appellant retroactive DEA benefits under Chapter 35. See 38 C.F.R. § 21.4131 (2017). The Board has no authority to grant claims on an equitable basis; instead, the Board is constrained to follow specific provisions of the law. 38 U.S.C. §§ 503, 511, 512(a), 7104 (2012); Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Furthermore, the Board is without authority to remand or refer and recommend equitable relief. 38 C.F.R. § 2.7 (c) (2016); Mayer v. Brown, 37 F.3d 618, 620 (1994) (drawing a distinction between the Chairman and the Board); Eicher v. Shulkin, 29 Vet. App. 1 (2017); Darrow v. Derwinski, 2 Vet. App. 303 (1992). In sum, the Board finds that the appellant simply is not eligible to receive retroactive educational assistance benefits under Chapter 35 as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Where the law, rather than the facts, is dispositive, the benefit of the doubt provisions as set forth in 38 U.S.C. § 5107 (b) (2012) do not apply. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Biggins, Associate Counsel