Citation Nr: 18156778 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 15-22 902A DATE: December 11, 2018 ORDER Entitlement to Chapter 35 Dependents’ Educational Assistance (DEA) benefits is denied. FINDING OF FACT 1. In a July 2014 rating decision, the RO determined that the Veteran was permanently and totally disabled due to service-connected disability, effective in June 2013. 2. The appellant, who is the Veteran’s daughter, was born in September 1986, and her 26th birthday was in September 2012. CONCLUSION OF LAW The criteria for eligibility for Chapter 35 DEA benefits have not been met. 38 U.S.C. § 3512 (2012); 38 C.F.R. §§ 3.807 (d), 21.3021, 21.3041 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Entitlement to Dependents Educational Assistance The appellant seeks Chapter 35 DEA benefits to pay for her to go to college. On her July 2015 substantive appeal, the appellant noted that her father did not receive his award (a total rating based on individual unemployability due to service connected disability (TDIU)) until she had already passed the qualifying age limit. She noted that there was no way for her to take advantage of those benefits before. As discussed below, the appellant’s assessment of her situation is correct. Basic eligibility for DEA benefits under Chapter 35 is established in one of several ways, including being a child of a veteran who had a permanent and total disability evaluation. 38 U.S.C. Chapter 35; 38 C.F.R. § 21.3021(a)(1). 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. No person is eligible for educational assistance that 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 or on or before the date the Veteran’s death occurred. 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). In no event may educational assistance be provided after the period of entitlement has been exhausted. The appellant was born in September 1986; therefore, her 26th birthday was in September 2012. As a result, she was older than 26 years old when basic eligibility to DEA benefits was established on June 10, 2013. As the appellant was over the age of 26 when she became an eligible person, she is not entitled to the benefit sought. There are exceptions to the age limit of 26 for DEA benefits. The Board has considered these exceptions, as noted in 38 C.F.R. § 21.3041; however, they are not pertinent to the appellant. 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. 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 is sympathetic to the appellant’s claim but is bound by the applicable law and regulations. In this case, there is no legal basis for granting the benefits requested by the appellant. The appellant was not potentially entitled to Chapter 35 DEA benefits until June 10, 2013, when the Veteran received a disability rating of 100 percent; she was 27 years old at the time. Accordingly, lack of entitlement under the law, rather than a contested factual matter, is dispositive of the claim, and eligibility for DEA benefits must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994) G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. E. Jones, Counsel