Citation Nr: 1324633	
Decision Date: 08/02/13    Archive Date: 08/13/13

DOCKET NO.  11-04 066	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to an extension of the delimiting date of June 14, 2010 for educational assistance benefits under Chapter 35, Title 38, United States Code. 


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

K. M. Schaefer, Counsel


INTRODUCTION

The Veteran served on active duty from May 1985 to June 1989.  He died in October 2012.  The appellant is his daughter.

This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2010 letter decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.

In May 2011, the appellant testified at a personal hearing before the undersigned Veterans Law Judge, sitting at the RO.  A transcript of that hearing is in the claims file.


FINDINGS OF FACT

1. The appellant's eligibility for Dependants' Educational Assistance (DEA) benefits under Chapter 35 expired on June 14, 2010.

2. The appellant was not enrolled in an eligible educational program as of June 14, 2010.
CONCLUSION OF LAW

The criteria for an extension of the delimiting date for educational assistance benefits pursuant to Chapter 35, Title 38, United States Code, have not been met.  38 U.S.C.A. §§ 3501, 3512 (West 2002); 38 C.F.R. §§ 21.3040, 21.3041, 21.3043, 21.3300 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002) eliminated the concept of a well-grounded claim and redefined VA's obligations with respect to its duties to notify and assist a claimant.  In August 2001, VA issued regulations to implement the VCAA.  66 Fed. Reg. 45,620 (August 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012)).

The Board notes that the Court of Appeals for Veterans Claims (Court) has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of that claim is based on statutory interpretation, rather than consideration of the factual evidence.  See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001).

In the present case, the facts are not in dispute.  As discussed below, resolution of the appellant's appeal is wholly dependent on interpretation of the relevant VA statutes and regulations, and their application to the facts already of record.  In this particular case, the facts that serve as the basis of the denial of the claim are incontrovertible.  Thus, as no reasonable possibility exists that any further factual development would assist in substantiating the claim, any deficiencies of VCAA notice or assistance, if they exist are rendered moot.  See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim).  Moreover, because the claim is being denied as a matter of law, no further development under the VCAA is warranted.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law); Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where the operation of law is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought).

II. Analysis

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.  38 U.S.C.A. § 3501(a)(1)(A); 38 C.F.R. § 21.3021.  The record reflects that the appellant is the Veteran's child, and that prior to his death in October 2012, the Veteran was in receipt of a permanent and total disability rating.  Therefore, the appellant met the basic eligibility requirements for educational assistance benefits under Chapter 35.  See 38 U.S.C.A. § 3501; 38 C.F.R. § 21.3021(a)(1)(i).   The period of eligibility for a child of the Veteran generally extends from the child's eighteenth birthday and ends on the child's twenty-sixth birthday.  38 U.S.C.A. § 3512(a); 38 C.F.R. § 21.3041.  During that eight year period (ninety-six months), the child is entitled to educational assistance not to exceed 45 months, or the equivalent thereof in part-time training.  38 U.S.C.A. § 3511(a); 38 C.F.R. §§ 21.3020(b), 21.3044(a).  The appellant applied for DEA benefits in December 2007, and in a January 2008 letter, the appellant was advised that her education benefits would expire on June 14, 2010.  She requests an extension through August 2011. 

Under the provisions of 38 C.F.R. § 21.3041(g), an eligible child's delimiting date may be extended to the end of the relevant school term if that date falls within the relevant term.  An extension may also be granted if, during the period of eligibility, the eligible child is ordered to active duty or involuntary full-time National Guard duty.  38 C.F.R. § 21.3041(h).  In certain other cases, the delimiting date may be extended if the eligible child's program of education has been suspended due to conditions determined to be beyond her control as listed at 38 C.F.R. § 21.3043, but not beyond the eligible person's 31st birthday. 

The provisions of 38 C.F.R. § 21.3043 direct that for an eligible person who suspends her program due to conditions determined by the Department of Veterans Affairs to have been beyond her control the period of eligibility may, upon her request, be extended by the number of months and days intervening the date the suspension began and the date the reason for suspension ceased to exist.  The burden of proof is on the eligible person to establish that suspension of a program was due to conditions beyond his or her control.  The period of suspension shall be considered to have ended as of the date of the person's first available opportunity to resume training after the condition which caused it ceased to exist.  The following circumstances may be considered as beyond the eligible person's control:
 
(a) While in active pursuit of a program of education he or she is appointed by the responsible governing body of an established church, officially charged with the selection and designation of missionary representatives, in keeping with its traditional practice, to serve the church in an official missionary capacity and is thereby prevented from pursuit of his or her program of studies. 

(b) Immediate family or financial obligations beyond his or her control require the eligible person to take employment, or otherwise preclude pursuit of his or her program. 

(c) Unavoidable conditions arising in connection with the eligible person's employment which preclude pursuit of his or her program. 

(d) Pursuit of his or her program is precluded because of the eligible person's own illness or illness or death in his or her immediate family. 

In May 2010, the appellant filed an application for an extension of the delimiting date for her DEA benefits.  In her request, she advised that she would begin a program in cosmetology at Wayne Community College in the Fall 2010 semester.  The record does not reflect that the appellant was pursuing any educational program as of June 14, 2010. 
The appellant requests an extension of her delimiting date until the end of her cosmetology program in August 2011.  She has provided multiple written statements, personal hearing testimony, and financial documentation in support of her contentions that family and financial obligations and personal disability precluded her from using her DEA benefits prior to June 14, 2010.  Such hardships and obligations may qualify a recipient of DEA for an extension of the delimiting date under 38 C.F.R. § 21.3043.  However, as discussed, such extension is available only if the recipient is in pursuit of an educational program as of the delimiting date and such hardships and obligations require her to suspend her education.  The appellant was not yet enrolled in her chosen educational program as of June 14, 2010.  Thus, she had not suspended her education because of her hardships and obligations, but delayed her initial enrollment.  There is no provision for extending the delimiting date to accommodate a beneficiary's lack of enrollment in an educational program by the delimiting date.  Thus, while the Board is sympathetic to the appellant's situation, an extension of the delimiting date beyond June 14, 2010 must be denied as a matter of law.






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ORDER

Entitlement to an extension of the delimiting date of June 14, 2010 for educational assistance benefits under Chapter 35, Title 38, United States Code, is denied. 





____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs