Citation Nr: 18147467 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 16-32 668 DATE: November 6, 2018 ORDER The claim of entitlement to Dependents Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code is denied. FINDING OF FACT 1. A rating decision issued in March 2015 granted the Veteran entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, effective July 15, 2010; basic eligibility to DEA benefits was also established from July 15, 2010. 2. The appellant, the Veteran’s daughter, reached her 26th birthday in November 2003 and, therefore, was older than 26 years old when she became eligible for Chapter 35 DEA benefits. CONCLUSION OF LAW The criteria for eligibility for chapter 35 DEA benefits are not met. 38 U.S.C. § 3512; 38 C.F.R. §§ 3.807, 21.3021, 21.3040, 21.3041. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1969 to October 1971. The appellant in this case is the Veteran’s adult daughter. This appeal to the Board of Veterans’ Appeals (Board) arose from a September 2015 determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, informing the appellant that she could not be approved for payment of DEA benefits. The appellant disagreed with that decision and perfected an appeal to the Board. Also, this appeal has been advanced on the Board's docket. See 38 U.S.C. § 7107 (a)(2) and 38 C.F.R. § 20.900(c). Basic eligibility for Chapter 35 benefits can be established in several ways, including being the child of a veteran who has a total disability permanent in nature resulting from a service-connected disability. See 38 U.S.C. § 3501(a)(1)(A)(ii); 38 C.F.R. § 3.807(a)(3)(i). In this case, the appellant’s potential eligibility for chapter 35 DEA benefits derives from her status as the legally-recognized child of a permanently and totally disabled veteran. Regardless of her status as the Veteran’s child, however, the law provides that no person who has 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 is eligible for Chapter 35 educational assistance benefits. 38 C.F.R. § 21.3040(c). Moreover, 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). 38 C.F.R. § 21.3040(d). Further, in no event may educational assistance be provided after the period of entitlement has been exhausted. Id. In the instant case, the appellant was born in November 1977; she thus turned 26 in November 2003. As a result, she was older than 26 years old when basic eligibility to DEA benefits was established, effective July 15, 2010. As the appellant was over the age of 26 when she became an eligible person, she is not entitled to the benefit sought. 38 C.F.R. § 21.3040(c). The Board notes that there are exceptions to the age limit of 26 for receipt of DEA benefits. The Board has considered these exceptions, as noted in 38 C.F.R. § 21.3041; however, they are not applicable in this case. Specifically, 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 if an eligible child is ordered to active duty or involuntarily ordered to full-time National Guard duty during his or her period of eligibility. 38 C.F.R. § 21.3041(g), (h). However, as the Veteran was not granted eligibility for DEA benefits until after the appellant’s 26th birthday, extensions of delimiting dates do not apply here. The Board has considered the arguments advanced by the appellant, to include that the she was in school as of the date that eligibility for DEA was established. Although that may have been the case, eligibility for DEA was not established until well after the appellant turned 26. Thus, although the Board is sympathetic to the appellant’s argument, the Board lacks the legal authority to award benefits outside the scope of the law, and has no authority to grant claims on an equitable basis. See 38 U.S.C. § 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994) (“No equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress”). As a final point, the Board notes that the Veterans Claims Assistance Act of 2000, codified in pertinent part at 38 U.S.C. §§ 5103, 5103A and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, describe VA’s duties to notify and assist claimants in substantiating a claim for VA benefits. These notice and duty to assist provisions are extended to VA education claims. See 38 C.F.R. §§ 21.1031-32. However, where, as here, the claim is essentially being denied as a matter of law, the duties imposed by the VCAA are not applicable. See, e.g., Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Neilson, Counsel