Citation Nr: 18150969 Decision Date: 11/20/18 Archive Date: 11/16/18 DOCKET NO. 15-15 876 DATE: November 20, 2018 ORDER Eligibility to education benefits under the Dependents Educational Assistance Program (DEA) is denied. FINDINGS OF FACT 1. In an April 2013 rating decision, the Veteran was granted entitlement to a total disability rating based on individual unemployability (TDIU) due to a service-connected disability, effective date August 22, 2009; basic eligibility to DEA benefits was also established effective August 22, 2009. 2. The appellant, who is the Veteran’s daughter, reached her 26th birthday in April 2007. CONCLUSION OF LAW The criteria for eligibility for chapter 35 DEA benefits are not met. 38 U.S.C. § 3512 (West 2014); 38 C.F.R. §§ 3.807, 21.3021, 21.3040, 21.3041 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Eligibility to education benefits under the Dependents Educational Assistance Program. 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 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. The appellant was born in April 1981; she thus turned 26 in April 2007. As a result, she was older than 26 years old when basic eligibility to DEA benefits was established, effective August 22, 2009. 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 has considered certain exceptions, as noted in 38 C.F.R. § 21.3041; however, they are not applicable in this case. 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. 38 C.F.R. § 21.3041 (g), (h). The Board has considered the arguments advanced by the appellant, to include that the Veteran was not medically able to claim total and permanent disability prior to the appellant’s 26th birthday. Although that may have been the case, the Veteran was not awarded a 100 percent disability rating until August 22, 2009, and eligibility for DEA was not established until that date, which as noted, was 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). In summary, since the age of the appellant was over 26 at the time that the Veteran was determined to be eligible for TDIU, the appellant does not meet the basic eligibility requirements for Chapter 35 DEA benefits. See again 38 C.F.R. §§ 3.807 (a), 21.3040(c). Here, the regulatory criteria governing eligibility for DEA benefits under Chapter 35 are clear and specific, and the Board is bound by them. Pursuant to these criteria, there is no basis upon which to grant the appellant Chapter 35 DEA benefits. In such a case, where the law is dispositive, the claim must be denied due to a lack of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Biggins, Associate Counsel