Citation Nr: 18153758 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 15-19 557 DATE: November 28, 2018 ORDER Entitlement to payment of Chapter 35 Dependents' Education Assistance (DEA) benefits is denied. FINDING OF FACT 1. The Veteran was found to be permanently and totally disabled, and basic eligibility for DEA benefits was established, both effective from July 28, 1999. 2. The Veteran died in April 2005, and service connection was established for the cause of his death. 3. The appellant was born in March 1973, and her initial application for DEA benefits was received by VA in July 2014. CONCLUSION OF LAW The criteria for entitlement to payment of Chapter 35 DEA benefits have not been met. 38 U.S.C. §§ 3500, 3501, 3510, 3512; 38 C.F.R. §§ 3.807, 21.3040, 21.3041, 21.7131. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1966 to February 1967, and from October 1969 to March 1971. He died in April 2005, and the appellant is his child. This matter is before the Board of Veterans’ Appeals (Board) on appeal from determinations at a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to payment of Chapter 35 DEA benefits 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. Except as provided in paragraphs (a)(2) and (3) of 38 C.F.R. § 3.57, the term child of the veteran means an unmarried person who is a legitimate child, a child legally adopted before the age of 18 years, a stepchild who acquired that status before the age of 18 years and who is a member of the veteran's household or was a member of the veteran's household at the time of the veteran's death, or an illegitimate child; and (i) who is under the age of 18 years; or (ii) who, before reaching the age of 18 years, became permanently incapable of self-support. 38 C.F.R. § 3.57(a)(1). In this case, the Veteran was found to be permanently and totally disabled, and basic eligibility for DEA benefits was established, effective from July 28, 1999. The Board also notes that the Veteran died in April 2005, and service connection was established for the cause of his death. Further, there is no dispute the appellant is the Veteran’s child. As such, basic eligibility criteria for Chapter 35 benefits appears to be satisfied. However, as detailed below, the Board must find that the appellant in this case is not entitled to payment of such benefits. The eligibility period generally begins on the person's 18th birthday, or on the successful completion of the child's secondary schooling, whichever occurs first, and ending on the person's 26th birthday. See 38 U.S.C. § 3512(a); 38 C.F.R. §§ 21.3040(a), 21.3041(a). An exception to the general rule for a beginning date provides, in part, that if a permanent and total disability rating occurs after the eligible person's 18th birthday, but before their 26th birthday, then the period of eligibility shall end 8 years after the date that is elected by that person to be the beginning date of entitlement under 38 U.S.C. § 3511or subchapter V of Chapter 35 of Title 38. See 38 U.S.C. § 3512(a)(3); 38 C.F.R. § 21.3041(a)(2)(ii) (Subchapter V pertains to special restorative training and such an element is not applicable in this case. See 38 U.S.C. §§ 3540 -3542; 38 C.F.R. § 21.3300.). The period of eligibility ends with the earlier of the date the Veteran is no longer rated permanently and totally disabled or 8 years after the beginning date elected. The eligible person can elect as a beginning date (1) the effective date of the permanent and total rating, (2) the date VA notifies the veteran of the rating, or (3) any date in between. 38 C.F.R. § 21.3041(a)(2)(ii). In this case, the appellant was born in March 1973. As such, she became 26 years of age in March 1999, prior to the July 28, 1999, basic eligibility period for the Chapter 35 DEA benefits. Consequently, she does not satisfy the basic eligibility criteria for payment of these benefits. The Board acknowledges the appellant has advanced various contentions in support of her appeal, to include the fact the Veteran had tried for many years to obtain VA benefits; and the determinations which awarded the pertinent benefits in this case were made after the appellant had been 26 years of age. She also maintains that the Veteran had exhibited the symptoms of the disabilities which resulted in his permanent and total disability was many years prior to the July 1999 effective date. Although the Board is sympathetic to the appellant’s position, it is required to follow the effective date assigned in this case, which is after her 26th birthday. The Board further notes that even if it were to determine the basic eligibility period for DEA benefits should have been prior to her 26th birthday in March 1999, her claim for payment of such benefits would still be denied. Applicable regulations governing the payment of Chapter 35 DEA benefits prohibit an award for any period earlier than one year prior to the date of the receipt of the application or enrollment certification, whichever is later. Specifically, the date on which an award of educational assistance benefits commences is the latest of the following dates: (1) the date the educational institution certifies the enrollment; (2) the date one year before the VA receives the veteran's application or enrollment certification, whichever is later; (3) the effective date of the approval of the course, or one year before the date VA receives the approval notice, whichever is later. 38 C.F.R. § 21.7131(a). "Date of claim" is defined as "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." Id. Here, the appellant’s original application for DEA benefits was received in July 2014, many years after the period she would have been entitled to receive Chapter DEA benefits; i.e., the period prior to her 26th birthday. The Board acknowledges that, in certain situations, the delimiting date for Chapter 35 DEA benefits may be modified or extended beyond an eligible person's 26th birthday, but generally not past his or her 31st birthday. 38 U.S.C. § 3512; 38 C.F.R. § 21.3041(g). However, in this case, the appellant’s original July 2014 application for Chapter 35 DEA benefits was also received many years after she would have turned 31 years of age in March 2004. In view of the foregoing, the appellant's arguments essentially constitute a theory of equitable relief. Although the Board is sympathetic to the claim, the Board is without authority to grant it on an equitable basis and instead is constrained to follow the specific provisions of law. See 38 U.S.C. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Based on the facts of this case, the Board must conclude there is no legal basis to grant the payment of Chapter 35 DEA benefits, which is the benefit she is seeking on appeal. Where the law and not the evidence is dispositive of the issue before the Board, the claim must be denied because of the absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD John Kitlas, Counsel