Citation Nr: 21065262 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 05-14 176A DATE: October 25, 2021 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 March 2004 granted a total disability rating based on individual unemployability (100 percent evaluation) and assigned an effective date of January 28, 2002, the date VA received the claim; this rating decision also established basic eligibility to DEA benefits under 38 U.S.C. Chapter 35 from that date. 2. In May 2004, the Appellant filed a claim of entitlement to Dependents' Educational Assistance benefits under Chapter 35, Title 38, United States Code. 3. The Appellant reached her 26th birthday on May [REDACTED], 2001 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; 38 C.F.R. §§ 3.807(d), 21.3021, 21.3041. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1968 to August 1970. The Appellant is the Veteran's daughter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 determination by a Department of Veterans Affairs (VA) Regional Office (RO) Education Center. Entitlement to 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 May [REDACTED], 1975; therefore, her 26th birthday was on May [REDACTED], 2001. Thus, 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 a March 2004 rating decision, the RO granted service connection for diabetes mellitus and an acquired psychiatric disorder as secondary to service-connected removal of uterus, and service connection for hypertension as secondary to service-connected type 2 diabetes mellitus, along with TDIU and eligibility to DEA, effective January 28, 2002, the date of the Veteran's initial claim for service connection for the aforementioned conditions. In June 2004, 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 access DEA benefits because the Veteran did not know she had type 2 diabetes mellitus until 1998. She asserts that VA withheld informing the Veteran of the medical diagnosis since 1988 to not pay for medications or increase her benefits. However, in a December 2003 VA examination report associated with the file document the Veteran's own reports of a diabetes mellitus diagnosis since 1988. Although the Veteran presented a suspicion at the December 2003 VA examination that her diabetes mellitus may have been diagnosed earlier than 1988, she never presented any evidence or argument to substantiate her bare assertion. Furthermore, the Veteran was granted service connection for right salpingo oophorectomy and superficial thrombophlebitis of the right saphenous vein and entitlement to special monthly compensation for loss of a creative organ, effective September 1, 1970, in December 1971 rating decision. The Veteran did not appeal this decision; thus, the decision is final. In March 1973, the Veteran filed a claim for an increased rating for her service-connected conditions. In April 1973, VA mailed the Veteran a letter requesting that the Veteran fill out and return the attached VA Form 21-4142's, Authorization and Consent to Release Information to the Department of Veterans Affairs. The Veteran failed to respond to the April 1973 letter. There is no indication of nonreceipt, nor was the letter returned as undeliverable. Where evidence requested in connection with an initial claim or supplemental claim or for the purpose of determining continued entitlement is not furnished within one year after the date of the request, the claim will be considered abandoned. 38 C.F.R. § 3.158 (a). After the expiration of one-year, further action will not be taken unless a new claim is received. Should the right to benefits be finally established, compensation based on such evidence shall commence not earlier than the date of filing the new claim. 38 C.F.R. § 3.158(a). Following another increased rating claim filed in October 1978, the Veteran was granted an increased rating for her salpingo oophorectomy, recharacterized as removal of the uterus, corpus and both ovaries in a December 1978 rating decision. The Veteran did not appeal this decision; thus, the decision was final. In an October 2003 rating decision, the RO found clear and unmistakable error in the December 1978 rating decision that assigned a temporary 100 percent rating for three months, effective October 11, 1978 to February 1, 1979, and a 30 percent rating thereafter, for the Veteran's service-connected removal of uterus, corpus and both ovaries. The RO then assigned a temporary 100 percent evaluation from October 9, 1978 to May 1, 1979 and a 50 percent rating thereafter. The Veteran did not appeal this decision; thus, the decision was final. Despite the Veteran's diagnosis of type 2 diabetes mellitus in 1988, the record reflects that the Veteran submitted her initial informal claim for service connection for type 2 diabetes mellitus, which was received by the VA RO on January 28, 2002. The issue of service connection for type 2 diabetes mellitus, along with other issues in that same claim, was granted by the RO in a rating decision dated in March 2004. The Veteran did not appeal the March 2004 rating decision and therefore, the decision is final. No prior formal or informal unadjudicated claims were outstanding. Therefore, there is no legal basis for the assignment of an effective date earlier than January 28, 2002 for the award for service connection for type 2 diabetes mellitus because the effective of the award is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Contrary to the Veteran and the Appellant's assertions, the Veteran's service connection claim was not continuously prosecuted. The Board finds that the Veteran did not appeal the December 1971, December 1978, October 2003, and March 2004 rating decisions, and the March 1973 claim was abandoned as the Veteran did not furnish the evidence as requested. Furthermore, the Board notes that the Veteran was granted eligibility for Chapter 35 benefits based on a TDIU of all her service-connected disabilities, and not solely due to service-connected diabetes mellitus. The Appellant also contends that she is also entitled to Chapter 35 benefits because per her interpretation of the law, at age 26 she was still within the age group eligible to receive benefits. The Appellant contends that because extensions may be granted past the age of 26, she should be provided Chapter 35 benefits, particularly because she was unable to apply for educational benefits until the Veteran was granted benefits. Here, the eligibility period for Chapter 35 benefits generally begins on the person's 18th birthday, or on the successful completion of the child's secondary schooling, whichever occurs first, and ending on the person's 26th birthday. See 38 U.S.C. § 3512(a); 38 C.F.R. §§ 21.3040(a), 21.3041(a). However, if the person has a mental or physical handicap, and the Secretary determines that the person's best interest will be served by pursuing a program of special restorative training or a specialized course of vocational training approved under section 3536 of this title [38 U.S.C. § 3536], such period may begin before the person's eighteenth birthday, but not before the person's fourteenth birthday. See 38 U.S.C. § 3512(a)(2); 38 C.F.R. § 21.3041(a)(1)(iii). In certain situations, the delimiting 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 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, including the eligible person's own illness or illness or death in his or her immediate family. 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 pursuant to 38 C.F.R. § 21.3041(g) apply in this case. Although the Appellant contends that her initial use of DEA benefits was delayed due to error by VA and the Veteran's delayed application for service connection, the exception under 38 C.F.R. § 21.3041(g)(1) to permit an extension for circumstances beyond an eligible person's control is when it results in the suspension of his or her course of study, and by its plain wording does not apply to a situation such as here when it is contended that the circumstances caused a delay in beginning the use of such benefits. 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, 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.