Citation Nr: A25007014 Decision Date: 01/27/25 Archive Date: 01/27/25 DOCKET NO. 220810-301581 DATE: January 27, 2025 ORDER Entitlement to Dependents Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code, is denied. FINDINGS OF FACT 1. A January 2022 rating decision granted the Veteran entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, effective January 17, 2018; basic eligibility for DEA benefits was also established from January 17, 2018. 2. The appellant, the Veteran's daughter, reached her 26th birthday in February 2014 and, therefore, was older than 26 years old when she became eligible for Chapter 35 DEA benefits. CONCLUSION OF LAW The criteria for eligibility for Chapter 35 DEA benefits are not met. 38 U.S.C. § 3512; 38 C.F.R. §§ 3.807, 21.3021, 21.3040, 21.3041. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran's DD Form 214 is not of record; other evidence of record indicates that the Veteran served on active duty in the United States Army from October 1974 to October 1977 and from January 1991 to March 1991. He died in August 2024. The appellant in this case is the Veteran's adult daughter. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2022 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, in which the RO denied the appellant's claim of entitlement to basic eligibility for DEA benefits. On April 14, 2023, the appellant filed a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement (NOD) in which she elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the February 2022 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the appellant would like VA to consider any evidence that was submitted that the Board could not consider, the appellant may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Eligibility for DEA Benefits Basic eligibility for DEA benefits can be established in several ways, including being the child of a veteran who has a total disability permanent in nature resulting from a service-connected disability. See 38 U.S.C. § 3501(a)(1)(A)(ii); 38 C.F.R. § 3.807(a)(3)(i). In this case, the appellant's potential eligibility for DEA benefits derives from her status as the child of a permanently and totally disabled veteran. Regardless of the status as the Veteran's child, however, the law provides that no person who has 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 is eligible for Chapter 35 educational assistance benefits. 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). 38 C.F.R. § 21.3040(d). Further, in no event may educational assistance be provided after the period of entitlement has been exhausted. Id. In the instant case, the appellant was born in February 1988, and thus turned 26 in February 2014. In January 2022, the RO issued to the Veteran a rating decision implementing the Board's grant of a total disability rating based upon individual unemployability (TDIU) due to service-connected disability. The RO assigned an effective date of January 17, 2018; basic eligibility for DEA benefits was also established from January 17, 2018. Prior to this, the Veteran was not in receipt of a total and permanent rating from VA. As a result, the appellant was older than 26 years old when basic eligibility to DEA benefits was established in the January 2022 rating decision, effective January 17, 2018. As the appellant was over the age of 26 when she became an eligible person, she is not entitled to the benefit sought. 38 C.F.R. § 21.3040(c). There are exceptions to the age limit of 26 for receipt of DEA benefits. The Board has considered these exceptions, as noted in 38 C.F.R. § 21.3041; however, they are not applicable in this case. Specifically, extensions of ending dates 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. 38 C.F.R. § 21.3041(g), (h). However, as basic eligibility for DEA benefits was not established until after the appellant's 26th birthday, extensions of delimiting dates do not apply here. The Board has considered the arguments advanced by the appellant, to include that she had first applied for DEA benefits prior to her 26th birthday and that she had been informed by a VA representative that she would qualify for benefits regardless of the Veteran was rated as permanently and totally disabled. The Board acknowledges the appellant's past applications for DEA benefits; however, at the time of those applications, the Veteran was not in receipt of a permanent 100 percent rating and basic eligibility for DEA benefits had not yet been established. The Board also regrets any misinformation the appellant may have received regarding her potential eligibility for DEA benefits. Unfortunately, in this case, eligibility for DEA was not established by VA until after the appellant turned 26 and the appellant is therefore not eligible for DEA benefits. The Board is sympathetic to the appellant's arguments and commends the appellant on her educational pursuits. However, the Board lacks the legal authority to award benefits outside the scope of the law and has no authority to grant claims on an equitable basis. See 38 U.S.C. § 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994) ("No equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress"). In this case, the claim must be denied as a matter of law, as the appellant was over the age of 26 when eligibility for DEA benefits was established. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Neilson, 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.