Citation Nr: 22051267 Decision Date: 09/09/22 Archive Date: 09/09/22 DOCKET NO. 18-13 713 DATE: September 9, 2022 ORDER Dependency benefits as a school child for the Veteran's child C.A.G. is denied. FINDINGS OF FACTS 1. The Veteran served on active duty from September 1963 to September 1966; he died in October 1999. The appellant is his surviving spouse and C.A.G. is their son. 2. In March 2016, the Agency of Original Jurisdiction (AOJ) granted service connection for the cause of the Veteran's death and the appellant was awarded Dependency and Indemnity Compensation (DIC) benefits effective June 19, 2007. 3. At the time service connection for the cause of the Veteran's death was established, C.A.G. was 27 years old. CONCLUSION OF LAW The criteria for dependency benefits for the Veteran's child C.A.G. based on school attendance have not been met. 38 U.S.C. §§ 1115, 1311; 38 C.F.R. §§ 3.4(b)(2), 3.503, 3.667, 21.3021, 21.3040, 21.3041. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is the Veteran's surviving spouse and filed on behalf of their child C.A.G. In March 2022, the appellant testified before the undersigned Veterans' Law Judge. The record was held open for 30 days. Additional evidence in the form of school transcripts was received during that period. Historically, the appellant filed a claim for DIC benefits in September 2003. She indicated that she was not claiming service connection for the Veteran's cause of death. In January 2004, the AOJ denied the claim for death pension. She did not file a timely appeal and the decision became final. Thereafter, nothing was received regarding the previously denied claim within one year from the January 2004 rating decision. In June 2007, the appellant filed a new claim for service connection for the Veteran's cause of death. At the time of the second claim, C.A.G. was 27 years old (i.e., born in January 1980). The appellant contends that C.A.G. was entitled to dependency benefits as a school child until his 23rd birthday. She argues, in essence, that from age 18 to 23 C.A.G. was enrolled in college full-time. She noted that while C.A.G. was already over 26 years old on June 19, 2007 (the date service connection for the Veteran's cause of death was established) it was due to VA's delay in processing her DIC claim that C.A.G. was not able to obtain his benefits earlier. For the reasons set forth below, entitlement to dependency benefits as a school child for C.A.G. is not warranted. Turning to the relevant laws and regulations, 38 U.S.C. § 1314(c) provides that if DIC benefits are payable monthly to a surviving spouse and there is a child (of such person's deceased spouse) who has attained the age of 18 and who, under the age of 23, is pursuing a course of instruction at an educational institution, DIC benefits shall be paid monthly to each such child concurrently with the payment of DIC benefits to the surviving spouse. The effective date for additional compensation for dependents will be the latest of the following dates: (1) date of claim; (2) date the dependency arises; (3) effective date of the qualifying disability rating provided evidence of dependency is received within a year of notification of such rating action; or (4) date of commencement of the service member's award. 38 C.F.R. § 3.401(b). Relevant to this appeal, the term "child" is defined, for purposes of veterans' benefits, as an unmarried person who is a legitimate child and who is under the age of 18 years, or after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. See 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.57. Here, C.A.G. was born in January 1980; therefore, his 23rd birthday was in January 2003, which was approximately 4 years prior to the effective date of the appellant's DIC award (i.e., June 2007). As C.A.G. was older than 23 when DIC benefits were established, he is not eligible for retroactive DIC benefits as here, the effective date was established based on the date of claim. See 38 C.F.R. § 3.401(b). Accordingly, C.A.G. became an eligible person after his 23rd birthday and, therefore, is not entitled to DIC benefits as a school child. The appellant asserts that C.A.G. is entitled to additional DIC benefits as a school child for his course of undergraduate studies from age 18 to age 23; however, the Board is bound by the applicable laws and regulations, and it is the law, and not the facts, what is dispositive of the present appeal. See 38 U.S.C. § 7104(c). Therefore, the evidence weighs persuasively against the claim and entitlement to additional DIC benefits on the basis of school attendance for C.A.G is not warranted. The Board has further considered whether C.A.G. meets basic eligibility for additional VA education benefits under DEA Chapter 35. In this regard, basic eligibility for DEA benefits under Chapter 35 is established in one of several ways, including being a child of a veteran who died of a service-connected disability. 38 U.S.C. Chapter 35; 38 C.F.R. § 21.3021(a)(1). In this case, C.A.G.'s potential eligibility for Chapter 35 DEA benefits derives from his status as the legally-recognized child of a Veteran who VA has determined died from a service-connected disability. VA regulation provides that 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). The Board has considered these exceptions, as noted in 38 C.F.R. § 21.3041; however, they are not applicable in this case. Extensions of ending dates (i.e., beyond 26 years old) are applicable where the beneficiary child is already in receipt of Chapter 35 educational assistance benefits and is pursuing his or her education, but has had to stop because of certain events beyond his or her control, such as if an eligible child is ordered to active duty or involuntarily ordered to full-time National Guard duty during his or her period of eligibility. See 38 C.F.R. § 21.3041(b)(2), (g), and (h). Here, as C.A.G. did not become eligible for DEA benefits until after his 26th birthday, extensions of delimiting dates do not apply. The Board is bound by the applicable law and regulations. There is no legal basis for granting the benefits requested by the appellant. As noted above, C.A.G. was not potentially entitled to either DIC as a school child over 18 years old, or to Chapter 35 DEA benefits until service connection was granted for the cause of the Veteran's death. Nonetheless, at the time of VA's determination he was over 26 years old. Accordingly, lack of entitlement under the law, rather than a contested factual matter, is dispositive of the claim, and eligibility to DIC benefits as a school child or Chapter 35 DEA benefits is denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Finally, the appellant has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William Pagan, Associate 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.