Citation Nr: 18143596 Decision Date: 10/23/18 Archive Date: 10/19/18 DOCKET NO. 14-38 404A DATE: October 23, 2018 ORDER Entitlement to an effective date prior to November 14, 2010, for the award of Department of Veterans Affairs (VA) Dependents’ Educational Assistance benefits under 38 U.S.C. Chapter 35 to the Appellant is denied. FINDING OF FACT 1. An August 2, 2010, VA rating decision established the Veteran’s basic eligibility to VA Dependents’ Educational Assistance benefits under 38 U.S.C. Chapter 35, effective February 10, 2010. The Veteran was informed of the rating decision on August 6, 2010. 2. The Appellant submitted a completed Application for Survivors’ and Dependents’ Educational Assistance, VA Form 22-5490, which was received by VA on November 14, 2011. 3. A November 2011 VA Certificate of Eligibility granted the Appellant Dependents’ Educational Assistance benefits for an approved course of education and informed the Appellant that “VA regulations prohibit us from issuing any payment for training that occurred before November 14, 2010, which is 12 months prior to the date of your application.” 4. A June 26, 2014, VA rating decision granted an effective date of August 27, 2009, for the Veteran’s basic eligibility to VA Dependents’ Educational Assistance benefits under 38 U.S.C. Chapter 35. The Veteran was informed of the rating decision on June 30, 2014. CONCLUSION OF LAW The criteria for an effective date prior to November 14, 2010, for the Appellant’s award of VA Dependents’ Educational Assistance benefits under 38 U.S.C. Chapter 35 have not been met. 38 U.S.C. § 5113; 38 C.F.R. §§ 21.1029, 21.3141, 21.4131. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1980 to November 1985; from January 2003 to October 2004; and from November 2004 to August 2009. A hearing was conducted before the undersigned Veterans Law Judge at the St. Petersburg, Florida, Regional Office. A hearing transcript is of record. Effective Date for Award of VA Dependents’ Educational Assistance Benefits The Appellant contends that his award of VA Dependents’ Educational Assistance benefits should be effective August 27, 2009, because the Agency of Original Jurisdiction’s initial incorrect determination as to the effective date for the Veteran’s basic eligibility for VA Dependents’ Educational Assistance benefits under 38 U.S.C. Chapter 35. The Appellant claims that he is entitled to Dependents’ Educational Assistance benefits for an approved course of education prior to November 14, 2010, as VA’s incorrect August 2, 2010, rating determination essentially prevented him from filing an earlier claim because he was unaware that the Veteran would be eligible for those benefits. The effective date of an award of VA Dependents’ Educational Assistance 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 received by VA. 38 C.F.R. §§ 21.1029(b), 21.4131(d). However, in situations involving an adjusted effective date for the determination of the Veteran’s basic eligibility for educational assistance under 38 U.S.C. Chapter 35 based on an original claim, an eligible person’s application for benefits will be considered as having been filed on his 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’s basic eligibility for VA Dependents’ Educational Assistance benefits under 38 U.S.C. Chapter 35 and (2) the eligible person files his original application for VA Dependents’ Educational Assistance benefits within one year of that rating decision. 38 U.S.C. § 5113; 38 C.F.R. § 21.3141. An August 2, 2010, VA rating decision established the Veteran’s basic eligibility to VA Dependents’ Educational Assistance benefits under 38 U.S.C. Chapter 35, effective February 10, 2010. The Veteran was informed of that rating decision on August 6, 2010. The Appellant submitted a completed Application for Survivors’ and Dependents’ Educational Assistance, VA Form 22-5490, which was received by VA on November 14, 2011, more than one year after the decision establishing entitlement to those benefits. A November 2011 VA Certificate of Eligibility granted the Appellant Dependents’ Educational Assistance benefits for an approved course of education. The Appellant was informed that “VA regulations prohibit us from issuing any payment for training that occurred before November 14, 2010, which is 12 months prior to the date of your application.” Subsequently, a June 26, 2014, VA rating decision granted an effective date of August 27, 2009, for the Veteran’s basic eligibility for VA Dependents’ Educational Assistance benefits under 38 U.S.C. Chapter 35. The Veteran was informed of the rating decision on June 30, 2014. The August 2, 2010, VA rating decision initially determined that the Veteran met the criteria for basic eligibility for VA Dependents’ Educational Assistance benefits under 38 U.S.C. Chapter 35, effective as of February 10, 2010. The Veteran was subsequently determined to meet the criteria for basic eligibility for VA Dependents’ Educational Assistance benefits under 38 U.S.C. Chapter 35, effective August 27, 2009. Notwithstanding the amended effective date, because the Appellant’s Application for Survivors’ and Dependents’ Educational Assistance, VA Form 22 5490, was received by VA on November 14, 2011, a date more than one year after the initial rating determination that the Veteran was eligible for VA Dependents’ Educational Assistance benefits under 38 U.S.C. Chapter 35, the Board of Veterans’ Appeals (Board) concludes that an effective date prior to November 14, 2010, may not be granted. 38 U.S.C. § 5113; 38 C.F.R. § 21.3141. While the Board is sympathetic to the Appellant’s claim and particular circumstances, it is bound by the law and is without authority to grant benefits on the basis of equity. 38 U.S.C. §§ 503, 7104 (2012); Harvey v. Brown, 6 Vet. App. 416 (1994). VA is constrained by the applicable law and regulations as written. 38 U.S.C. § 7104(c). No plea for equity, 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 (1992). Where the law and not the evidence is dispositive of a claim, the claim should be denied because of the absence of legal merit or lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Accordingly, the Board finds that the Appellant is not eligible for VA Dependents’ Educational Assistance benefits under the provisions of 38 U.S.C. Chapter 35 for the period prior to November 14, 2010, and the claim must be denied. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel