Citation Nr: 20009987 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 17-06 252 DATE: February 6, 2020 ORDER Entitlement to Dependents’ Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35 is denied. FINDINGS OF FACT 1. The Veteran died of a service-connected disability on October [REDACTED], 2014. 2. An April 2016 rating decision granted entitlement to service connection for the cause of the Veteran's death and granted eligibility to DEA benefits, effective in October 2014. 3. At the time of the Veteran’s death in October 2014, the Appellant was 26 years of age. CONCLUSION OF LAW The criteria for entitlement to DEA benefits under 38 U.S.C. Chapter 35 are not met. 38 U.S.C. § 3501 (2012); 38 C.F.R. §§ 21.3021, 21.3040, 21.3041 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from August 1962 to June 1971. He died in October 2014. The Appellant is his adult son. In an April 2016 rating decision, the Agency of Original Jurisdiction (AOJ) awarded the Veteran’s widow service connection for the cause of the Veteran’s death and basic eligibility for DEA benefits, effective in October 2014. The present appeal originates from the Appellant’s July 2016 claim for DEA benefits. In August 2016, the AOJ denied the Appellant’s claim for DEA benefits on the basis that he did not submit requested documentation pertinent to his claim. He thereafter submitted the documentation and in September 2016, the AOJ denied the claim on the basis that the Appellant did not meet the age requirements for basic eligibility. The Appellant appealed this determination to the Board of Veterans’ Appeals (Board). See 38 C.F.R. § 20.200. In October 2019, the Appellant and the Veteran’s surviving spouse, C.G., testified at a Board hearing held at the RO before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Basic eligibility for Chapter 35 benefits is established in one of several ways, including being the child of a Veteran who has a total and permanent disability rating from a service-connected disability; or being the child of a deceased Veteran where the death was due to a service-connected disability. 38 U.S.C. § 3501 (a)(1)(A); 38 C.F.R. §§ 21.3021 (a)(1), 21.3041(a), (b). No person is eligible for educational assistance who reached his or her 26th birthday on or before the effective date of a finding of permanent total service-connected disability, or on or before the date the veteran’s death occurred. 38 C.F.R. § 21.3040(c). The Appellant in this case was born in February 1988. Consequently, at the time of the Veteran’s death in December 2014, he was 26 years old. Thus, he had already reached his 26th birthday before the Veteran’s death occurred. Accordingly, as a matter of law, he is not eligible for receipt of DEA benefits. See Sabonis v. Brown, 6 Vet. App. 426 (1994). The Appellant and his mother (the Veteran’s widow) have asserted via their hearing testimony and in writing that the effective date for the DEA award should go back to the date that the Veteran was diagnosed as having the illness that led to his death, rather than the date of his death. They state that in such a case the effective date should go back to October 2013, which is when the Veteran was informed that he had a terminal illness. They also note that the appellant attended classes through his 26th birthday and they assert that the age requirement should be extended through to age 27. While the Board understands the arguments presented by the appellant and his mother and is sympathetic to the Appellant’s claim, it is bound by the applicable law and regulations which do not allow for receipt of DEA benefits by a child of the Veteran based on service-connected death when that child is on or over 26 years of age at the time of the Veteran’s death. Thus, as the Board has no basis for awarding the appellant DEA benefits in this case, this claim must be denied as a matter of law. Sabonis, 6 Vet. App. at 430. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Shawkey, 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.