Citation Nr: 18152689 Decision Date: 11/27/18 Archive Date: 11/23/18 DOCKET NO. 15-16 925 DATE: November 27, 2018 ORDER Entitlement to retroactive payment of Dependents' Education Assistance (DEA) benefits under 38 U.S.C. Chapter 35 is denied. FINDING OF FACT 1. An August 2011 rating decision, in pertinent part, determined that basic eligibility to DEA benefits under 38 U.S.C. Chapter 35 was established from May 27, 1992. The Veteran was informed of this decision by correspondence dated in September 2011. 2. The appellant’s application for DEA benefits was received by VA in July 2014. CONCLUSION OF LAW The criteria for retroactive payment of DEA benefits under 38 U.S.C. Chapter 35 have not been met. 38 U.S.C. §§ 3512, 5113; 38 C.F.R. §§ 21.1029. 21.4131. REASONS AND BASES FOR FINDING AND CONCLUSION The record reflects the Veteran served on active duty in the United States Marine Corps from May 1968 to April 1972, and that the appellant in this case is his daughter as the claim concerns entitlement to DEA benefits on her behalf. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 determination by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to retroactive payment of DEA benefits under 38 U.S.C. Chapter 35 Basic eligibility for Chapter 35 benefits for the child or surviving spouse of a veteran is established in one of several ways: (1) the veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran's death; or (4) the veteran died as a result of a service-connected disability. 38 U.S.C. §§ 3500, 3501, 3510; 38 C.F.R. §§ 3.807. A child's period of eligibility may begin after his or her eighteenth birthday if the VA "first finds" that the Veteran has a total disability permanent in nature after the child's eighteenth birthday, but before her or his twenty-sixth birthday. 38 C.F.R. § 21.3041 (a)(2), (b)(2); see also 38 C.F.R. § 21.3021 (s) and 21.3041(b)(2)(ii) (reflecting that the term "first finds" means either the effective date of the total disability rating, or the date VA first notifies the Veteran or appellant of that rating, whichever is more advantageous to the child). If VA first finds the Veteran permanently and totally disabled after the child's eighteenth birthday but before his or her twenty-sixth birthday, the child may elect the beginning date of the period of eligibility. 38 C.F.R. § 21.3041(a)(2)(ii). The child can elect as a beginning date the effective date of the total disability, the date that VA provides notice of the relevant determination, or any date in between. Id. 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). In this case, the Board notes that an August 2011 rating decision, in pertinent part, determined that basic eligibility to DEA benefits under 38 U.S.C. Chapter 35 was established from May 27, 1992. The Veteran was informed of this decision by correspondence dated in September 2011. Thereafter, the appellant’s application for DEA benefits was received by VA in July 2014. However, the application was for college education that occurred from August 1999 to May 2004, more than 7 years prior to the August 2011 rating decision which established basic eligibility for DEA benefits, and more than 10 years prior to the appellant’s application for such benefits. Therefore, the claim is considered to be one for retroactive benefits. Inasmuch as the application for DEA benefits was received more than two years after the August 2011 rating decision, there is no legal basis to find the appellant’s application for DEA benefits for the 1999 to 2004 college schooling was received within the period required by law in order to receive such retroactive benefits. The Board acknowledges the contentions submitted in support of the appeal, to include that the appellant would have been entitled to DEA benefits if the Veteran’s claim had been approved earlier, particularly in light of the May 1992 effective date. Further, it has been contended VA did not provide adequate notification regarding the time limit to submit an application for DEA benefits. Moreover, it has been contended that the appellant is not seeking retroactive benefits, but for her current student loans for the college education in question to be considered paid. With respect to these contentions, the Board notes that September 2011 notification letter did inform the Veteran that basic eligibility for DEA benefits under Chapter 35 had been granted. The Board also notes that the law explicitly states that it can only consider the award of DEA benefits for the type of schooling in this case – that is which occurred prior to the award of DEA benefits, and thus retroactive for VA purposes – if the application is received within one year of the initial rating decision which established basic eligibility for such benefits. See 38 U.S.C. § 5113; 38 C.F.R. § 21.4131(e). As already stated, the application was received more than 2 years after that rating decision in this case. Although the Board is sympathetic to the appellant's position, and the contentions advanced in support of this appeal, the regulatory criteria and legal precedent governing eligibility for the receipt of Chapter 35 DEA benefits are clear and specific. The Board is bound by these criteria, and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Consequently, the claim for retroactive DEA benefits on behalf of the appellant must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (when the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD John Kitlas, Counsel