Citation Nr: 19123714 Decision Date: 03/29/19 Archive Date: 03/29/19 DOCKET NO. 15-46 931 DATE: March 29, 2019 ORDER The claim of entitlement to Dependents Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code is denied. FINDINGS OF FACT 1. A rating decision issued in April 2015 granted the Veteran entitlement to a 100 percent disability rating for posttraumatic stress disorder, effective November 25, 2014; basic eligibility to DEA benefits was also established from November 25, 2014. 2. The appellant, the Veteran’s son, reached his 26th birthday in June 2006 and, therefore, was older than 26 years old when he 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; 38 C.F.R. §§ 3.807, 21.3021, 21.3040, 21.3041. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1961 to August 1965. The appellant in this case is the Veteran’s adult son. This appeal to the Board of Veterans’ Appeals (Board) arose from a June 2015 determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, informing the appellant that he could not be approved for payment of DEA benefits. The appellant disagreed with that decision and perfected an appeal to the Board. In December 2018, the appellant testified at a Board videoconference hearing before the undersigned Veterans Law Judge; the Veteran and his spouse also provided testimony, and a transcript of that hearing is of record. Chapter 35 Eligibility Basic eligibility for Chapter 35 benefits can 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. See 38 U.S.C. § 3501(a)(1)(A)(ii); 38 C.F.R. § 3.807(a)(3)(i). In this case, the appellant’s potential eligibility for chapter 35 DEA benefits derives from his status as the legally-recognized child of a permanently and totally disabled veteran. Regardless of his 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). 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). 38 C.F.R. § 21.3040(d). Further, in no event may educational assistance be provided after the period of entitlement has been exhausted. Id. In the instant case, the appellant was born in June 1980; he thus turned 26 in June 2006. As a result, he was older than 26 years old when basic eligibility to DEA benefits was established, effective November 25, 2014. As the appellant was over the age of 26 when he became an eligible person, 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. The Board has considered these exceptions, as noted in 38 C.F.R. § 21.3041; 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 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. 38 C.F.R. § 21.3041(g), (h). However, 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. Furthermore, the appellant was 34 years old at the time he applied for DEA benefits. The Board stresses that the relevant regulations preclude extension of eligibility period beyond an eligible person’s 31st birthday except to the end of the educational term (quarter or semester or end of course) in which the delimiting date falls. 38 U.S.C. § 3512 (c); 38 C.F.R. §§ 21.3040 (d), 21.3041(g)(2). As the appellant did not file for DEA benefits until well after he turned 31, and no exception to the age-limitation rules exists, there is simply no legal basis upon which to grant the benefit sought, and the appellant’s claim for DEA benefits must be denied. See 38 C.F.R. §§ 21.3040 (d), 21.3041(g), (h). In so concluding, the Board has considered the arguments advanced by the appellant, to include that he was in school prior to the age of 26. Although that may have been the case, eligibility for DEA was not established until well 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) (“No equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress”). MATTHEW TENNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Neilson, Counsel