Citation Nr: 22044239 Decision Date: 08/03/22 Archive Date: 08/03/22 DOCKET NO. 17-48 738 DATE: August 3, 2022 ORDER Entitlement to Dependents' Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35 is denied. FINDING OF FACT At the time the Veteran was granted entitlement to DEA, the Appellant was approximately 27 years and 7 months old. CONCLUSION OF LAW The criteria for entitlement to DEA benefits under 38 U.S.C. Chapter 35 have not been met. 38 U.S.C. §§ 3500, 3501, 3512, 3513, 5113, 7104 (2021); 38 C.F.R. §§ 21.3020, 21.3021, 21.3040, 21.3041, 21.4131 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from April 1968 to November 1969. Sadly, the Veteran passed away in July 2009. This matter comes before the Board of Veterans' Appeals (Board) from the February 2002 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Appellant appeared at a June 2022 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Entitlement to Dependents' Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35 The Appellant contends that she is entitled to DEA benefits. 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 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). Further, 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. Procedural History In December 2000, the Veteran was granted service connection for organic personality syndrome due to excised meningioma, evaluated at 100 percent disabling. Subsequently, in a December 2001 rating decision, entitlement to DEA benefits was established, with an effective date of September 6, 2001, the date the Veteran's organic personality syndrome was considered a permanent and total disability. Simultaneously, on December 28, 2000 (prior to the Veteran's establishment of entitlement to DEA), the Appellant filed an application for DEA benefits. On her application she stated that at that time she was 26 years old. In January 2001, the Appellant's claim was denied as her status as a dependent was not established. Therefore, in June 2001, the Appellant submitted her birth certificate verifying her status as the Veteran's daughter. In August 2001, the Agency of Original Jurisdiction (AOJ) again denied the Appellant's claim for DEA benefits the Veteran was not rated permanently and totally disabled prior to the Appellant's 26th birthday. The Board notes that the Appellant turned 26 on January [REDACTED], 2000. In April 2002, the Veteran submitted an unsigned statement disagreeing with the August 2001 rating decision. The AOJ responded stating that the Veteran's notice of disagreement (NOD) is invalid as it does not contain a signature. The Appellant did not submit a signed NOD until October 2015. Later that month, the Appellant was notified that her October 2015 NOD was not timely. In March 2016, the Appellant filed another application for entitlement to DEA benefits, which was again denied later that month. The Appellant submitted yet another NOD in April 2016. In August 2016, the AOJ again informed the Appellant that her March 2016 application was not considered a timely notice of disagreement and that the denial of her claim for entitlement to DEA benefits was final. For reasons unknown, this case was procedurally continued, and in July 2017, a Statement of the Case was issued. At that time, the Appellant's claim was again denied as the effective date of the Veteran's permanent and total disability rating was after the Veteran's 26th birthday. Therefore, entitlement to DEA benefits was denied. Later that month, the Appellant filed a Form 9, Formal Appeal to the Board and requested a hearing before a Veterans Law Judge, which was held in June 2022. Analysis Given the above factual evidence, the Board finds that the Appellant is not eligible to receive DEA benefits under 38 U.S.C. Chapter 35. Specifically, as noted above, the Veteran did not have a total and permanent disability rating from a service-connected disability prior to the Appellant turning 26. In this case, basic eligibility for Chapter 35 benefits stems from the Appellant being a child of a Veteran who has a total and permanent disability rating from a service-connected disability. 38 U.S.C. § 3501 (a)(1)(A); 38 C.F.R. §§ 21.3021 (a)(1), 21.3041(a), (b). However, eligibility for DEA benefits became effective when the Veteran's service connected disabilities were legally found to be permanently and totally disabled, or September 6, 2001, at which time the Appellant was approximately 27 years and 7 months old. Because the Appellant was over the age of 26 when the Veteran became permanently and totally disabled, she is not eligible for educational assistance. 38 C.F.R. § 21.3040 (c). The Board acknowledges the Appellant's testimony, during the June 2022 Board hearing that the Veteran's service-connected disabilities should have been rated higher during his life and that the March 1970 rating decision should have granted service connection and awarded a 100 percent rating for his organic personality syndrome due to excised meningioma, as well as entitlement to DEA, based on a clear and unmistakable error (CUE). However, the record does not show that the Veteran appealed the March 1970 rating decision, which became final. Furthermore, at the time of this death, the Veteran did not have a pending claim for CUE in any rating decision that denied entitlement to an earlier effective date of his entitlement to DEA benefits or the assigned disability ratings for his service-connected disabilities. Therefore, the Appellant cannot bring a freestanding CUE claim after the Veteran's death. See Rusick v. Gibson, 760 F. 3d 1342 (Fed. Cir. 2014). (Even if the Veteran did have a pending CUE claim at the time of his death, the Appellant would not be an eligible substitute for that claim. The Appellant's status as the Veteran's child cannot be the basis for substitution as there is no evidence that she is an unmarried helpless child, an unmarried child under 18 years of age, or an unmarried child in college under the age of 23. See Sucic v. Shulkin, 29 Vet. App. 121 (2017) (holding that adult children do not meet the definition of children for accrued benefits or substitution purposes)). The Board is sympathetic with the Appellant's claim; however, it is bound by the applicable law and regulations. In this case, there is, unfortunately, no legal basis for granting the benefits requested by the Appellant. She was not entitled to DEA benefits until September 6, 2001, when the Veteran became permanently and totally disabled. At that time, she was approximately 27 years and 7 months old. Thus, entitlement to DEA benefits under 38 U.S.C. Chapter 35 must be denied as a matter of law. Where the law, rather than the facts, is dispositive, the benefit of the doubt provisions as set forth in 38 U.S.C. § 5107 (b) do not apply. See Sabonis v. Brown, 6 Vet. App. 426 (1994). J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mountford, 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.