Citation Nr: 20003798 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 19-13 035 DATE: January 16, 2020 ORDER Entitlement to eligibility to Dependents' Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35 is denied. FINDING OF FACT 1. The Veteran was granted a permanent and total disability rating, effective December 2016. 2. The appellant, who is the Veteran’s son, was born in September 1990; he had turned 26 at the time the Veteran was found permanently and totally disabled by a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to eligibility to DEA benefits under 38 U.S.C. Chapter 35 have not been met. 38 U.S.C. §§ 3501, 3512, 5103A, 5107; 38 C.F.R. §§ 21.3021, 21.3041. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from September 1967 to August 1969. The appellant is the Veteran’s son. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2018 decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied the appellant’s claim for DEA benefits. Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act, VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Regulations relating to notice and assistance, specific to education benefits, are found at 38 C.F.R. §§ 21.1031, 21.1032. The Board notes that the appellant has been notified of the reasons for the denial of his claim and has been afforded full opportunity to present evidence and argument with respect to the claim. The Board finds the duty to notify and assist has been met. Analysis 1. Entitlement to eligibility to DEA benefits under 38 U.S.C. Chapter 35 The appellant is seeking eligibility to DEA benefits. He asserts that even though the effective date for the Veteran’s permanent disability was not granted until after the appellant turned 26, the basis of the Veteran’s permanent disability stemmed from issues present since his discharge. Therefore, the appellant contends that he should still be allowed to receive education benefits. 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 eligibility for DEA benefits derives from his status as the legally-recognized child of a Veteran who has a total disability permanent in nature resulting from a service-connected disability. The basic beginning date of an eligible child’s period of eligibility for DEA benefits is his or her 18th birthday, or successful completion of secondary schooling, whichever occurs first. 38 U.S.C. § 3512(a); 38 C.F.R. § 21.3041(a). This beginning date may be tolled (i.e., delayed) in certain situations, including when the veteran’s permanent and total disability rating is assigned after the child reaches age 18, but before the child becomes 26 years of age. 38 C.F.R. § 21.3041(a)(2)(ii). In that case, the beginning date of eligibility will be the effective date of the permanent and total disability rating or the date of notification to the veteran of such rating, whichever is more advantageous to the child. Id. The basic ending date for DEA benefits is the eligible child’s 26th birthday. 38 U.S.C. § 3512; 38 C.F.R. § 21.3041(a)(1). However, if the effective date of the permanent and total disability rating, or notification of the rating, occurs when the child is between the ages of 18 and 26, the ending date will be 8 years from such effective date or date of notification, whichever is more advantageous to the child. 38 U.S.C. § 3512; 38 C.F.R. § 21.3041(d)(1). In this case, the record shows that the appellant was born in September 1990; therefore, he reached the age of 26 in September 2016. In a December 2016 rating decision, the Veteran was granted a permanent and total disability rating, effective December 5, 2016. As the appellant had already turned 26 years old when he became an eligible person for DEA benefits, he is not entitled to the benefits sought. In certain situations, the delimiting date or ending date may be modified or extended beyond an eligible person’s 26th birthday, but generally not past his or her 31st birthday. 38 U.S.C. § 3512; 38 C.F.R. § 21.3041(g). The provisions of 38 C.F.R. § 21.3041(g) set forth the three exceptions. First, the period of eligibility ending date may be extended if an education program has been suspended due to conditions determined to be beyond the eligible person’s control as listed at 38 C.F.R. § 21.3043. If it is found that a suspension of a program of education was in fact due to conditions beyond the eligible person’s control, then the ending date may be extended for the length of the period of suspension, but not beyond the eligible person’s 31st birthday. See 38 C.F.R. § 21.3041(g)(1). Second, if an eligible person’s period of eligibility ending date occurs while the person is enrolled in an educational institution, VA may extend the period of eligibility in two circumstances: (i) for a child enrolled in an educational institution that regularly operates on the quarter or semester system, the ending date may be extended to the end of the quarter or semester; or (ii) for a child who completes a major portion of a course while enrolled in an educational institution that operates under other than a quarter or semester system, the ending date may be extended to the end of the course, but not to exceed 12 weeks. See 38 C.F.R. § 21.3041(g)(2). Extensions under this provision may be made beyond age 31. Id. The third and final exception allows a delimiting date extension where an eligible child is ordered to active duty or involuntarily ordered to full-time National Guard duty during her period of eligibility. 38 C.F.R. § 21.3041(h). The Board finds that none of the exceptions apply in this case. As the appellant was not granted eligibility for DEA benefits until after his 26th birthday, extensions of delimiting dates do not apply here. (Continued on the next page)   The Board is sympathetic to the Veteran’s contentions. However, the law is clear regarding the eligibility for DEA benefits. Despite the appellant’s assertions, the Board does not have the legal authority to grant his claim for DEA benefits. In summary, based on the foregoing evidence and the applicable laws and regulations, the Board finds that there is no legal basis for granting eligibility to DEA benefits. Therefore, the appellant’s claim for eligibility to DEA benefits must be denied. Where the law and not the evidence is dispositive of the issue before the Board, the claim must be denied because of the absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). In such cases, the benefit of the doubt provisions as set forth in 38 U.S.C. § 5107(b) do not apply. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Journet Shaw, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.