Citation Nr: 18155718
Decision Date: 12/06/18	Archive Date: 12/04/18

DOCKET NO. 15-22 857A
DATE:	December 6, 2018
ORDER
Entitlement to Dependents Educational Assistance (DEA) benefits is denied.
FINDINGS OF FACT
1.  A rating decision issued March 2014 established basic eligibility to DEA benefits from April 20, 2012.
2. The appellant, the Veteran’s daughter, reached her 26th birthday in November 2011, 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 (West 2014); 38 C.F.R. §§ 3.807, 21.3021, 21.3040, 21.3041 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Entitlement to Dependents Educational Assistance (DEA) benefits
The appellant is seeking entitlement to DEA education benefits.  See February 2015 Application for DEA Benefits.  In a February 2015 letter the RO denied the appellant’s application because the effective date of the Veteran’s basic eligibility for DEA benefits was after the appellant’s 26th birthday.  For the reasons noted below the Board finds the appellant is not eligible for DEA benefits. 
Basic eligibility for Chapter 35 benefits can potentially 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, as is the case in the present appeal. See 38 U.S.C. § 3501 (a)(1)(A)(ii); 38 C.F.R. § 3.807 (a)(3)(i). 
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). 
In the instant case, the appellant was born in November 1985; she turned 26 in November 2011. A March 2014 rating decision granted the Veteran basic eligible for DEA benefits based on a permanent and total service-connected disability effective April 20, 2012.  As a result, the appellant had reached her 26th birthday when basic eligibility to DEA benefits was established. Therefore, 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, 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.  However, as the Veteran was not granted eligibility for DEA benefits until after the appellant’s 26th birthday, the appellant was never awarded DEA benefits and extensions of delimiting dates do not apply here.
The Board has considered the arguments advanced by the appellant, to include that the she had applied to receive DEA benefits prior to her 26th birthdate.  Even if this had been the case, the Veteran was not found to have a permeant and total service-connected disability until April 20, 2012, 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). 
 
M.E. Larkin
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. Biggins, Associate Counsel