Citation Nr: 1825847 Decision Date: 04/30/18 Archive Date: 05/07/18 DOCKET NO. 14-32 466 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to payment of Chapter 35 (Dependents Educational Assistance (DEA)) benefits prior to March 1, 2013. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1979 to March 1984. The Appellant in this case is his son. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2014 determination by the Education Center located at the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The RO in Boston, Massachusetts currently has jurisdiction over the case. The Appellant had originally requested a hearing before a Veterans Law Judge (VLJ) of the Board in conjunction with this appeal. Such a hearing was scheduled for June 2015, but the Appellant did not report for this hearing and there is no evidence of good cause for not reporting. As such, his hearing request is deemed withdrawn. See 38 C.F.R. §§ 20.702, 20.704 (2017). FINDINGS OF FACT The Appellant's application for Chapter 35 (DEA) benefits was received by VA on March 1, 2014, and there is no evidence he submitted any such claim prior to that date. CONCLUSION OF LAW The criteria for payment of Chapter 35 (DEA) benefits prior to March 1, 2013, are not met. 38 U.S.C.A. §§ 3500, 3501, 3510, 3512 (West 2014); 38 C.F.R. §§ 3.57, 3.807, 21.731 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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.A. §§ 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 Appellant's basic eligibility for Chapter 35 (DEA) benefits is not in dispute. He is recognized as the son of the Veteran; a May 2008 rating decision found the Veteran was 100 percent disabled effective March 1, 2008; and that same rating decision noted that basic eligibility for DEA benefits was established from April 26, 2008. Rather, the dispute in this case is whether the Appellant is entitled to payment of such benefits prior to March 1, 2013, specifically for educational courses that occurred from August 2006 to December 2010. 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. (Emphasis added). Here, the Appellant's application for DEA benefits was received by VA on March 1, 2014; and it was determined he was entitled to payment of such benefits from March 1, 2013, one year prior to the date of claim. Nothing in the record reflects the Appellant filed such an application prior to March 1, 2014. In fact, the Appellant acknowledges there was no earlier application. Rather, he maintains, as detailed in his August 2014 Substantive Appeal, he was not aware of his eligibility to apply for such benefits prior to the time of the March 2014 application, and requests an exception be made to the regulatory provisions for payment of DEA benefits. Although the Board is sympathetic to the Appellant's circumstances, it is required to follow the specific provisions of law. See 38 U.S.C.A. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). There is no exception, under the law, which would permit payment of Chapter 35 (DEA) benefits for educational courses that occurred more than one year prior to the date of claim. Consequently, this appeal 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). ORDER Payment of Chapter 35 (DEA) benefits prior to March 1, 2013, is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs