Case: 12-7171 Document: 8 Page: 1 Filed: 01/03/2013
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
BEVERLY A. BLAIR,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2012-7171
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 09-1913, Judge William P.
Greene, Jr.
__________________________
ON MOTION
__________________________
Before BRYSON, LINN, and REYNA, Circuit Judges.
PER CURIAM.
ORDER
The Secretary of Veterans Affairs moves to dismiss
this appeal from a ruling of the United States Court of
Appeals for Veterans Claims (Veterans Court).
Case: 12-7171 Document: 8 Page: 2 Filed: 01/03/2013
BEVERLY BLAIR v. SHINSEKI 2
The appellant Beverly Blair’s late father, veteran Earl
L. Blair, served on active duty in the armed forces from
September 1951 to October 1955. At the time of his death
in October 2005, he had not been awarded entitlement to
service connection for any disability or condition, although
he had been receiving nonservice connected pension
benefits.
At the age of 34, the appellant filed an application for
dependent’s educational assistance (DEA) benefits pursu-
ant to the War Orphans’ Educational Assistance Act of
1956, now codified at Chapter 35 of Title 38 of the U.S.
Code. That statute was created for the purpose of assist-
ing “children whose education would otherwise be im-
peded or interrupted by reason of disability or death of a
parent from a disease or injury incurred or aggravated in
the Armed Forces.” 38 U.S.C. § 3500. The Department of
Veterans Affairs (DVA), in a regional office (RO) decision,
denied her claim and she appealed that decision to the
Board of Veterans’ Appeals (Board).
On appeal, the Board found Ms. Blair ineligible for
DEA benefits. In addition to noting that at the time of his
death Mr. Blair was not service connected for any disabil-
ity, the Board explained that DEA eligibility by law is
generally limited to applicants under 26. Ms. Blair ap-
pealed the Board’s decision to the Veterans Court, which
affirmed. Like the Board, the Veterans Court concluded
that the appellant’s age made her ineligible to receive
DEA benefits as a matter of law. This appeal followed.
With some exceptions not applicable here, 38 U.S.C.
§ 3512 provides that DEA benefits may be afforded to
eligible persons “during the period beginning on the
person’s eighteenth birthday, or on the successful comple-
tion of the person’s secondary schooling, whichever first
occurs, and ending on the person’s twenty-sixth birth-
day[.]” In light of that limitation, the Department has
prescribed a general rule that “no person” is eligible to
Case: 12-7171 Document: 8 Page: 3 Filed: 01/03/2013
3 BEVERLY BLAIR v. SHINSEKI
commence receipt of educational assistance “who reached
his or her 26th birthday on or before the effective date of a
finding of permanent total service-connected disability, or
on or before the date the veteran’s death occurred,” 38
C.F.R. § 21.3040(c) (2012), and “no person” is eligible for
educational assistance beyond his or her 31st birthday,
except to complete a quarter, semester or course. 38
C.F.R. §§ 21.3040(d) (2012), 21.3041(g)(2) (2012).
While contending that the Department erred in previ-
ous decisions denying her father entitlement to service
connection, Ms. Blair does not dispute that she was older
than the age allowed to receive DEA benefits as a matter
of law. Summary affirmance is therefore appropriate.
See Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir.
1994) (summary affirmance of a case “is appropriate, inter
alia, when the position of one party is so clearly correct as
a matter of law that no substantial question regarding the
outcome of the appeal exists.”).
Accordingly,
IT IS ORDERED THAT:
(1) The motion is granted to the extent that the
judgment of the Veterans Court is summarily affirmed.
(2) Each side shall bear its own costs.
FOR THE COURT
/s/ Jan Horbaly
Jan Horbaly
Clerk
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