Citation Nr: 18159908 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 15-29 694 DATE: December 20, 2018 ORDER Entitlement to Dependents’ Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35 is denied. FINDINGS OF FACT 1. A rating decision issued in September 2014 granted a total disability rating based on individual unemployability (100 percent evaluation) and assigned an effective date of June 26, 2013; this rating decision also established basic eligibility to DEA benefits under 38 U.S.C. Chapter 35 from that date. 2. In October 2014, the appellant filed a claim for Dependents' Educational Assistance benefits under Chapter 35, Title 38, United States Code. 3. The Appellant reached her 26th birthday on March [redacted], 2013 and, therefore, was older than 26 years old when basic eligibility for Chapter 35 benefits was established. CONCLUSION OF LAW The appellant has no legal basis for entitlement to educational assistance benefits under Chapter 35, Title 38, United States Code. 38 U.S.C. § 3512 (2012); 38 C.F.R. §§ 3.807(d), 21.3021, 21.3041 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1966 to February 1970. The Appellant is the Veteran’s daughter. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 determination by a Department of Veterans Affairs (VA) Regional Office (RO) Education Center. Entitlement to Dependents’ Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code. As discussed below, the Appellant’s claim fails based on the law and not on an interpretation of the facts. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought). 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 on March [redacted], 1987; therefore, her 26th birthday was on March [redacted], 2013. Therefore, she was over twenty-six years of age at the time she submitted her application for education benefits, and at the time it was determined that the Veteran was permanently and totally disabled (i.e. the effective date). In November 2014, the RO determined that because the appellant had already turned twenty-six years of age by the effective date of the Veteran’s permanent and total disability, she was not eligible for Chapter 35 educational benefits. Thereafter, the appellant perfected an appeal with respect to that determination. The appellant has argued, essentially, that she was unable to attend school between the ages of 18 and 26 because she was pregnant and thereafter required a period of recovery from the pregnancy. She asserts that this fact should exempt her from the age restrictions typically applied in claims for educational assistance. The Board, notes, however, that the evidence shows, and the Veteran also acknowledges that she was already 26 during her pregnancy and surgical procedure. While sympathetic to the appellant’s situation, the Board is bound by the applicable law and regulations when determining claims for VA benefits. 38 U.S.C. § 7104(a). The appellant in this case does not meet the eligibility requirements for educational assistance benefits under Chapter 35, as she attained the age of twenty-six prior to applying for said benefits and the Veteran was determined totally and permanently disabled after she attained that age (as such, a modified extension is not warranted under 38 C.F.R. § 21.3041(d)). Applicable law and regulations do not provide for an extension of the ending date in cases such as the one presented in this appeal. In summary, the law is clear that the basic ending date for Chapter 35 benefits is the eligible child’s twenty-sixth birthday. 38 U.S.C. § 3512(a). The appellant had attained this age at the time she sought educational benefits and at the time of the effective date that the veteran was found permanently and totally disabled. Accordingly, there is no legal basis for an award of educational assistance benefits pursuant to 38 U.S.C. Chapter 35 and the claim must be denied. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel