Citation Nr: 21066389 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 18-53 635 DATE: October 29, 2021 ORDER Entitlement to Dependents' Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35 prior to September 1, 1999 is denied. FINDINGS OF FACT 1. In a September 2017 rating decision, the Agency of Original Jurisdiction (AOJ) found that the Veteran had died due to a service-connected disability effective December 17, 1993 and granted basic eligibility to DEA benefits; the appellant was notified of this decision in September 2017. 2. A November 2017 Certificate of Eligibility informed the appellant that she was approved to receive DEA benefits and that she could choose any date to begin benefits starting from the date of the Veteran's death in February 1990 to the date of the September 2017 decision granting the benefits. 3. In January 2018, the AOJ received the appellant's election form that she signed in December 2017 choosing September 1, 1999 as the beginning date for her DEA benefits. CONCLUSION OF LAW The criteria for entitlement to DEA benefits under 38 U.S.C. Chapter 35 prior to September 1, 1999 have not been met. 38 U.S.C. §§ 3500, 3501, 3512; 38 C.F.R. §§ 21.3020, 21.3021, 21.3046. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1965 to May 1969. He died in February 1990. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office. In June 2021, the appellant withdrew her request to testify at a Board hearing. Basic eligibility for Chapter 35 benefits can be established in several ways, including being the surviving spouse of a Veteran who died of a service-connected disability. See 38 U.S.C. § 3501(a)(1)(B); 38 C.F.R. § 21.3021(a)(2)(i). Here, in a September 2017 rating decision, the AOJ granted service connection for the cause of the Veteran's death as well as basic eligibility for DEA benefits. The AOJ notified the appellant of this decision that same month. The appellant's basic eligibility for DEA benefits as the Veteran's surviving spouse up to the date that she remarried in April 2005 is not in dispute. See 38 U.S.C. § 101(3), 3.55. In cases such as this where the surviving spouse's eligibility is based on the Veteran's death from a service-connected disability, the surviving spouse will choose the beginning date of the 10-year period to use the benefits. That date will be no earlier than the date of death of the Veteran and no later than the date of the VA determination that the Veteran's death was due to a service-connected disability. 38 U.S.C. § 3512(b); 38 C.F.R. § 21.3046(b)(5)(ii). In November 2017, the AOJ issued the appellant a Certificate of Eligibility informing her of her entitlement to 45 months of DEA benefits and that the Certificate of Eligibility was conditional on her choosing a date for the benefits to begin. She was informed that she could choose as the beginning date the date that the Veteran died, on February 2, 1990, or the date of the AOJ's decision granting service connection for the cause of the Veteran's death, on September 5, 2017, or any date between those two dates. Thereafter, in January 2018, the AOJ received a signed election form from the appellant dated in December 2017 choosing September 1, 1999 as the beginning date for her DEA benefits. In February 2018, the AOJ issued the appellant another Certificate of Eligibility acknowledging her election of September 1, 1999 as the beginning date of eligibility for DEA benefits. She was also informed that she must take the Certificate of Eligibility to her school to certify her enrollment before she could get paid. In March 2018, the AOJ informed the appellant that VA was only able to pay for part of her enrollment at SUNY Institute of Technology Utica, as VA was unable to pay for training received prior to her eligibility date of September 1, 1999. In congressional electronic mail correspondence in May 2018, a congressional staff member informed VA that the appellant had erred in choosing September 1, 1999 as the start date of her DEA benefits. He explained that one of the schools that the appellant had attended reported that the appellant had taken classes in the Fall Semester of 1998 and Spring Semester of 1999 and not the Fall Semester of 1999 as the appellant had mistakenly believed. He relayed the appellant's request that she be issued a new Certificate of Eligibility showing the beginning date for DEA benefits in September 1998 rather than in September 1999. Unfortunately, VA regulation is clear in this regard. The pertinent provision found under 38 C.F.R. § 21.3046(b)(6) provides that once a surviving spouse has chosen a beginning date of eligibility as provided in paragraph (b)(5) of this section, the surviving spouse may not revoke that choice. Thus, while the Board is sympathetic to the circumstances of this appeal, it is bound by the relevant statutes and regulations as they currently stand, as applied to the facts of this case, and has no authority to grant these benefits based on equity. See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). See also Sabonis v. Brown, 6 Vet. App. 426 (1994) (holding that, where the law is dispositive, the claim must be denied due to an absence of legal entitlement). The claim is therefore denied. Kristin Haddock 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.