Citation Nr: 18141209 Decision Date: 10/10/18 Archive Date: 10/09/18 DOCKET NO. 14-15 402A DATE: October 10, 2018 ORDER Entitlement to Dependents’ Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35 is denied. FINDINGS OF FACT 1. A September 2010 rating decision notified the Veteran that his service-connected disabilities were permanent and total in nature and that basic eligibility to DEA benefits was established from February 9, 2010. 2. The appellant, who is the Veteran’s daughter, was born in March 1983 and was 26 years old on February 9, 2010. CONCLUSION OF LAW The criteria for entitlement to DEA benefits under 38 U.S.C. Chapter 35 are not met. 38 U.S.C. § 3501 (2012); 38 C.F.R. §§ 21.3021, 21.3040, 21.3041 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from December 1967 to August 1977, and from August 1984 to February 1989. The appellant is his adult daughter. In her August 2014 substantive appeal, the appellant requested a hearing before a Veterans Law Judge (VLJ) of the Board. In a subsequent May 2018 letter, she indicated that he no longer wished to appear before a VLJ at a hearing. Thus, her hearing request is considered withdrawn. 38 C.F.R. § 20.704 (e) (2017). In addition, the Board notes that the appellant’s representative submitted a statement in support of her claim in April 2015. In a September 2018 appellate brief, submitted after the appellant withdrew her hearing request, the appellant’s representative asserted that the appellant’s file was incomplete, as the documentation related to her claim was missing. However, the Board has reviewed the file and found all necessary documentation of the claim for education benefits to be associated therewith. In addition, no such assertions were made in the April 2015 statement from the appellant’s representative. Because the representative has had multiple opportunities to provide a written statement in lieu of a hearing, the Board finds that it may proceed with adjudication of the claim. 38 C.F.R. §§ 20.600. Basic eligibility for DEA benefits is established in one of several ways, including being a child of a veteran who has a permanent and total disability evaluation. 38 U.S.C. § 3501 (a)(1)(A)(ii); 38 C.F.R. § 21.3021 (a)(1)(iii). In this case, the appellant’s potential eligibility for DEA benefits derives from her status as the child of a permanently and totally disabled veteran. The basic beginning date for the utilization of DEA benefits by an eligible child of a veteran is either his or her 18th birthday or the date of his or her successful completion of secondary schooling, whichever is the earlier date. 38 C.F.R. § 21.3041 (a). This beginning date may be tolled (i.e., delayed) in certain situations, including when the veteran’s permanent and total disability rating is assigned after the child reaches age 18, but before the child becomes 26 years of age. 38 C.F.R. § 21.3041 (b)(2)(ii). In that case, the beginning date of eligibility will be the effective date of the permanent and total disability rating or the date of notification to the veteran of such rating, whichever is more advantageous to the child. Id. The basic ending date for DEA benefits is the child’s 26th birthday. 38 U.S.C. § 3512; 38 C.F.R. § 20.3041 (c). However, if the effective date of the permanent and total disability rating, or notification of the rating, occurs when the child is between the ages of 18 and 26, the ending date will be 8 years from such effective date or date of notification, whichever is more advantageous to the child. 38 U.S.C. § 3512; 38 C.F.R. § 20.3041 (d)(1). The ending date can be extended if, among other things, the child suspends his or her program due to conditions determined by VA to have been beyond her control; for example, if immediate family obligations beyond her control require her to take employment, or pursuit of her program is precluded because of her own illness, or she is ordered to active military duty or involuntarily ordered to full-time National Guard duty. 38 U.S.C. § 3512; 38 C.F.R. §§ 20.3041 (g), 21.3043. Unfortunately, however, under applicable law, no person is eligible for educational assistance who reached his or her 26th birthday on or before the effective date of a finding of the Veteran being permanently and totally disabled by service-connected disability. 38 C.F.R. § 21.3040 (c). Further, no person is eligible for educational assistance beyond his or her 31st birthday, except as provided under 38 C.F.R. § 21.3041 (g)(2). In no event may educational assistance be provided after the period of entitlement has been exhausted. In this case, in the September 2010 rating decision, it was determined that the Veteran had a total service-connected disability, permanent in nature, effective February 9, 2010, the date that VA received his claim for service connection. Thus, basic eligibility to DEA was granted effective as of that date. In multiple statements to VA, the appellant has asserted that she started college immediately after high school but had to suspend her studies to move in with, and take care of, her sick parents, including the Veteran. Her mother died in 2008. She also indicated that the Veteran was dealing with his own health issues after the death of his wife, and thus did not apply for compensation in a timely manner. Because these circumstances were out of her control, the appellant asks that her eligibility for DEA benefits be extended. It is not disputed that the appellant was born in March 1983 and that she was already 26 years old when eligibility to DEA was established on February 9, 2010. However, as that date is subsequent to the appellant’s 26th birthday, she is ineligible for Chapter 35 DEA benefits as a matter of law. 38 U.S.C. § 3512; 38 C.F.R. § 20.3041 (c). The Board acknowledges that there are exceptions to the age limit of 26 for DEA benefits. The Board has considered these exceptions, as noted in 38 C.F.R. § 21.3041; however, they are not pertinent to the appellant. As indicated above, extensions of ending dates are applicable where the beneficiary child is already in receipt of Chapter 35 educational assistance benefits and is pursuing his or her education, but has had to stop because of certain events beyond his or her control, such as family obligations, their own illness, or being ordered to active duty or involuntarily ordered to full-time National Guard duty during his or her period of eligibility. Extensions do not apply in the present matter because the Veteran was not granted eligibility for DEA benefits until after the appellant’s 26th birthday. The appellant was never eligible for educational assistance, because she was already 26 years of age when the Veteran was found to be permanently and totally disabled. Therefore, the appellant was never an eligible child. The Board commends the appellant’s goal of furthering her education and is sympathetic to her contentions; however, it simply lacks legal authority to award benefits outside the scope of the law. In this case, because a child of a veteran is not permitted to begin receiving DEA benefits after age 26 and because basic eligibility to such benefits was not established in this case until after the appellant had turned 26, the claim must be denied as a matter of law. 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) are not for application. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeremy J. Olsen, Counsel