Citation Nr: 0001043 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 98-02 170A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to Dependents' Educational Assistance benefits under Chapter 35, Title 38, United States Code. ATTORNEY FOR THE BOARD David S. Nelson, Associate Counsel INTRODUCTION The veteran served on active duty from August 1960 to November 1964. The appellant is the veteran's daughter. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 1997 determination by the Buffalo, New York, Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in December 1997, and a statement of the case was sent later that month. The appellant's substantive appeal was received in January 1998. FINDINGS OF FACT 1. The veteran died on August [redacted], 1997. 2. The appellant was born on September [redacted], 1970; she was over the age 26 at the time of the veteran's death. 3. A September 1997 rating decision granted service connection for the cause of the veteran's death, at which time basic eligibility for educational assistance benefits pursuant to Chapter 35 was also established. 4. In September 1997, the RO received the appellant's Application for Survivors' and Dependents' Educational Assistance. CONCLUSION OF LAW The appellant is not entitled to Dependents' Educational Assistance under Chapter 35, Title 38, United States Code. 38 U.S.C.A. §§ 3501, 3512 (West 1991); 38 C.F.R. §§ 21.3021, 21.3040, 21.3041, 21.3043 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant, who was born on September [redacted], 1970, is the daughter of the veteran. The evidence reflects that in August 1997 the veteran was found to be totally (but not permanently) disabled due to service-connected disability, effective December 27, 1996. The veteran died on August [redacted], 1997, and service connection for the cause of the veteran's death was granted on September 16, 1997, at which time basic eligibility for educational assistance benefits pursuant to Chapter 35 was also established. In September 1997, the RO received the appellant's Application for Survivors' and Dependents' Educational Assistance. Basic eligibility for educational assistance benefits under Chapter 35 may be established in several ways, including being a child of a veteran whose death was service-connected. 38 U.S.C.A. § 3501; 38 C.F.R. § 21.3021. Ordinarily, a child's period of eligibility for educational assistance under Chapter 35 ends on her 26th birthday. 38 U.S.C.A. § 3512(a); 38 C.F.R. § 21.3041(c). In certain circumstances, however, the ending date may be modified to beyond the child's 26th birthday, but an extension beyond the 31st birthday is disallowed. 38 C.F.R. 21.3041(d). The law provides that a modification or extension of the eligibility period may be granted if the veteran-parent dies between the child's 18th and 26th birthdays. In such cases, the basic ending date for eligibility will be the child's 26th birthday or 8 years from the death of the veteran- parent. 38 C.F.R. 21.3041(d)(2). The Board also notes that if a child is in a program of education, but is prevented from continuing the program due to his own disability, the period of eligibility may be extended. 38 U.S.C.A. § 3512(c). However, in no event can the period of eligibility be extended beyond the appellant's 31st birthday. 38 C.F.R. § 21.3041. The record shows that the appellant was born on September [redacted], 1970. Therefore, the ending period for the use of Chapter 35 benefits was September [redacted], 1996, the date on which she attained the age of 26 years. 38 U.S.C.A. § 3512(a); 38 C.F.R. § 21.3041(c). In this case, the evidence shows that the appellant filed her initial claim for Chapter 35 benefits after her eligibility period had expired, i.e., by September 1997. The Board further observes that the veteran's death, as well as the grant of service connection for the cause of the veteran's death, occurred after the appellant's 26th birthday, and thus no modified ending date is warranted under 38 C.F.R. § 21.3041(d)(2). Moreover, the evidence does not show and that appellant does not contend that a program of education was suspended due to conditions beyond her control, as is contemplated by 38 C.F.R. § 21.3043. In a January 1998 letter, the appellant contends that the VA has misinterpreted the law to require that she be 25 years of age at the pertinent time instead of 26. However, the provisions of 38 C.F.R. § 21.3041(c) speak in terms of a claimant's 26th birthday, not in terms of being 26 years of age. The appellant also maintains that she was in effect misled by certain language in a VA benefit pamphlet. Even assuming for the sake of argument that the appellant's interpretation of the VA pamphlet regarding her eligibility for educational assistance benefits is correct, the Board is not authorized to award payment of benefits where statutory requirements for such benefits were not met. See Harvey v. Brown, 6 Vet. App. 416, 424 (1994). It is regrettable if the appellant feels that she may have received conflicting information regarding her eligibility for VA educational assistance benefits, but this would not create any legal right to benefits where such benefits are otherwise precluded by law. See Shields v. Brown, 8 Vet. App. 346, 351 (1995). The Board acknowledges the arguments advanced by the appellant; however, the legal criteria governing service eligibility requirements for Chapter 35 educational assistance are clear and specific. Based on the foregoing, the Board finds that there is simply no legal basis to find the appellant eligible for educational assistance benefits under Chapter 35. As the disposition of this claim is based on the law, and not on the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The appeal is denied. ALAN S. PEEVY Member, Board of Veterans' Appeals