Citation Nr: 1328674	
Decision Date: 09/09/13    Archive Date: 09/17/13

DOCKET NO.  11-10 851	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to an extension of the delimiting date for Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, of the United States Code, beyond December 17, 2010.  


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Debbie A. Breitbeil, Counsel


INTRODUCTION

The Veteran had unverified active service from December 1967 to August 1971.  The appellant is the Veteran's child.

This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a December 2010 decision by a Department of Veterans Affairs (VA) Regional Office (RO), which did not process the appellant's enrollment information for educational term running from January 15, 2011 to May 13, 2011 on the basis that the delimiting date had occurred.  In January 2011, the appellant's notice of disagreement was received, and in response the Muskogee, Oklahoma RO issued him a statement of the case in February 2011.  The appellant perfected his appeal to the Board with the filing of a substantive appeal (VA Form 9) in April 2011.  

In August 2011, the appellant appeared at the Phoenix, Arizona RO, which is currently handling the appeal, and testified at a hearing before the undersigned Veterans Law Judge sitting in Washington, DC.  A transcript of the hearing has been associated with the appellant's education file.  

The Board notes that a review of the Veteran's records contained in the Virtual VA system (i.e., records uploaded to the electronic version of his claims file) reveals a November 2010 rating decision codesheet showing all of the Veteran's service-connected disabilities, together with the ratings and effective dates assigned for each disability.


FINDINGS OF FACT

1.  The Veteran was awarded permanent and total service-connected disability rating by way of a rating decision dated in November 2002; notice of the rating decision was provided in December 2002.

2.  The appellant was born in March 1980 and is the child of the Veteran. 

3.  The appellant became eligible for education benefits between his 18th and 26th birthdays. 

4.  The appellant first sought education benefits in January 2008; an 8-year delimiting date was established as November 23, 2010.

5.  The appellant was afforded education benefits beyond the delimiting date of November 23, 2010, and the RO extended his benefits to December 17, 2010, the expiration of the term that the appellant was enrolled in when the delimiting date occurred.


CONCLUSION OF LAW

The appellant is not entitled to DEA benefits beyond December 17, 2010.  38 C.F.R. §§ 3501, 3511, 3512 (West 2002); 38 C.F.R. §§ 21.3020, 21.3021, 21.3040, 21.3041, 21.3043 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, provides that VA will notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  The VCAA also requires VA to assist a claimant in obtaining evidence necessary to substantiate a claim.  Regulations relating to notice and assistance, specific to education benefits, are found at 38 C.F.R. § 21.1031, 21.1032.

No notice was provided to the appellant in this case.  However, because the record in this case shows that undisputed facts make the appellant ineligible for an extension of his delimiting date, the Board finds that the VCAA does not apply to this appeal.  See Manning v. Principi, 16 Vet. App. 534, 542-543 (2002); see also VAOPGCPREC 5-2004.

Legal Criteria, Factual Background, and Analysis

Evidence of record reflects that in a November 23, 2002 rating decision, the Veteran was given a permanent and total disability rating effective June 21, 2001.  Notice of the rating was provided to him on December 3, 2002.  Evidence of record also establishes that the appellant is the child of the Veteran and that he was born in March 1980.

In January 2008, the appellant submitted a claim for entitlement to Dependents' Educational Assistance (DEA) benefits.  On his VA Form 22-5490, Application for Survivors' and Dependents' Educational Assistance, he reported that he aimed to earn an associate's degree in science and eventually a bachelor's degree in engineering.  He indicated that he would begin schooling that month at Scottsdale Community College.  The college certified his enrollment in classes beginning January 12, 2008 (9 credit hours with 3 credit hours of remedial/deficiency courses).  

In February 2008, the Muskogee RO notified the appellant that he was awarded DEA benefits, specifically 45 months of full-time educational benefits to use plus an additional five months of additional full-time education benefits to take a college refresher, remedial, or deficiency courses.  In a separate letter in February 2008, the RO requested the appellant to choose the beginning date of his eligibility period.  His choice of a beginning date was June 21, 2001 (the effective date of the award of the Veteran's permanent and total disability rating), December 3, 2002 (the date the Veteran was informed of his award of a permanent and total disability rating), or any date in between those two dates.  The appellant was informed that he would have eight years from the ending date he chose in which to use his benefits.  The RO also informed him that it had chosen November 23, 2002 as his election date in order that his benefits would not be delayed, and that if he did not respond with an election date (he was told December 3, 2002 was the most advantageous date) then his beginning date would be kept as November 23, 2002.  As there is no evidence that the appellant responded with his choice of a beginning date for eligibility, the beginning date was November 23, 2002, after which he had eight years to use his benefits.  Thus, his delimiting date was established as November 23, 2010, and he had 45 months of original entitlement.  

Records in the file show that the appellant was enrolled at Scottsdale Community College from January 12 to April 1, 2008; from August 23 to December 19, 2008; from January 17 to May 14, 2009; from June 1 to July 2, 2009; from August 22 to December 17, 2009; from January 16 to May 13, 2010; from June 1 to July 22, 2010; and from August 21 to December 16, 2010.  In other words, he was enrolled continuously at the college and did not discontinue his education for any length of time.  Further, the appellant was paid DEA benefits for these periods of enrollment.  Notably, the RO extended the benefits from the delimiting date of November 23, 2010 to the end of the term (i.e., December 17, 2010), as the appellant was, at that time, enrolled in an educational institution, in accordance with 38 C.F.R. § 21.3041(g)(2). 

An electronic certification from Scottsdale Community College was received in December 2010, showing the appellant was enrolled for the term January 15 to May 13, 2011, but the RO did not process this enrollment information as it was past the appellant's delimiting date.  


In January 2011, the appellant filed a statement ("notice of disagreement") with the RO's actions, requesting that his DEA benefits be extended because he lacked 14 credits for his degree.  In February 2011, the RO issued a statement of the case in which it noted that, generally, a claimant has 8 years from the beginning date of eligibility to use DEA benefits.  In this case, the beginning date was November 23, 2002, and the ending date was November 23, 2010.  VA extended benefits to December 17, 2010 to allow for the appellant to complete the school term, which is permitted by VA regulations.  In an April 2011 substantive appeal statement, he alleged that he was not given any information concerning the time frame he was given in which to use his education benefits.  

In essence, the appellant desired to have his educational assistance benefits extended beyond December 17, 2010, to allow him to finish his planned educational program at Scottsdale Community College.  At a hearing in August 2011, the appellant testified that not only was the Veteran (his father) unaware of the education benefits that he could give to his son (the appellant) from his permanent and total disability award but that the Veteran and he had limited communication and had not seen each other in over seven years.  Essentially, he stated that the day he became eligible for education benefits, he was not informed of his entitlement by the Veteran, and that after much time had elapsed he learned of his entitlement through a friend whose own father was disabled.  He argued for an extension of the delimiting date based on his lack of awareness of his ability to take advantage of the benefit.  

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)(ii); 38 C.F.R. § 21.3021(a)(1)(iii).  The evidence reflects that the appellant is the Veteran's child, and that the Veteran was in receipt of a permanent and total disability rating.  See 38 C.F.R. § 21.3021(p).  Thus, the appellant is an eligible person for DEA benefits.  Each eligible person shall be entitled to educational assistance under Chapter 35 for a period not in excess of 45 months (or to the equivalent thereof in part-time training).  38 U.S.C.A. § 3511(a)(1).

An eligible person's period of eligibility generally begins on the person's 18th birthday, or on the successful completion of the child's secondary schooling, whichever occurs first, and ending on the person's 26th birthday.  See 38 U.S.C.A. § 3512(a); 38 C.F.R. §§ 21.3040(a), 21.3041(a). 

An exception to the general rule for a beginning date provides, in part, that if a permanent and total disability rating occurs after the eligible person's 18th birthday, but before their 26th birthday, then the period of eligibility shall end 8 years after the date that is elected by that person to be the beginning date of entitlement under 38 U.S.C.A. § 3511 or subchapter V of Chapter 35 of Title 38.  See 38 U.S.C.A. § 3512(a)(3); 38 C.F.R. § 21.3041(a)(2)(ii).  The period of eligibility ends with the earlier of the date the veteran is no longer rated permanently and totally disabled or 8 years after the beginning date elected.  The eligible person can elect as a beginning date the effective date of the permanent and total rating, the date VA notifies the veteran of the rating, or any date in between.  38 C.F.R. § 21.3041(a)(2)(ii).  (The Board notes that subchapter V pertains to special restorative training and such an element is not applicable in this case.  See 38 U.S.C.A. §§ 3540-3542; 38 C.F.R. § 21.3300).  Thus, the normal period of eligibility can go beyond the eligible person's 31st birthday.

The appellant was between his 18th and 26th birthdays when the Veteran was determined to be permanent and totally disabled.  The rating decision granting the Veteran's award was dated November 23, 2002.  The effective date of the award was June 21, 2001.  Notice of the rating action was provided on December 3, 2002.  Nevertheless, November 23, 2002 was the date established as the beginning date - chosen by the RO as the appellant did not respond with his choice of a beginning date - with the delimiting date falling 8 years later, on November 23, 2010.  The Board notes that there was a change to certain regulations pertaining to eligibility and entitlement to DEA benefits effective May 28, 2008, prior to the established delimiting date in this case.  See 73 Fed. Reg. 30,486-30,492 (May 28, 2008).  Although the delimiting date was established under prior statutory and regulatory provisions, the intervening changes in the law and regulations would not have changed the appellant's beginning or delimiting dates.  

In certain situations, the delimiting date may be modified or extended beyond an eligible person's 26th birthday, but generally not past his 31st birthday.  38 U.S.C.A. § 3512; 38 C.F.R. § 21.3041(g).  The period of eligibility ending date may be extended if an education program has been suspended due to conditions determined to be beyond the eligible person's control as listed at 38 C.F.R. § 21.3043.  If it is found that a suspension of a program of education was in fact due to conditions beyond the eligible person's control, then the ending date may be extended for the length of the period of suspension, but not beyond the eligible person's 31st birthday.  38 U.S.C.A. § 3512(c); 38 C.F.R. § 21.3041(g)(1). 

If an eligible person's period of eligibility ending date occurs while the person is enrolled in an educational institution, VA may extend the period of eligibility (extensions may be made beyond age 31) as limited in 38 C.F.R. § 21.3041(g)(2)(i), (ii).  The narrow circumstances presented in 38 C.F.R. § 21.3041(g)(2)(i) allow for an extension of the period of eligibility to the end of the course quarter or semester for a child enrolled in an educational institution that regularly operates on the quarter or semester system.  38 U.S.C.A. § 3512(a)(7).  The basis found at 38 C.F.R. § 21.3041(g)(2)(ii), relating to extending the date to the end of a course for an institution that operates under other than a quarter or semester system, is not for application in this case.  

The above exceptions represent the only bases for extending a delimiting date.  The Board will now discuss the exceptions to delimiting dates as they apply to the appellant.  The appellant had not reached his 31st birthday (in March 2011) before the initially established delimiting date of November 23, 2010 had come to pass.  Nevertheless, the evidence shows that his last semester was certified as from August 21, 2010 to December 16, 2010, and he was paid educational assistance benefits to December 17, 2010, which marked the end of his semester.  In short, the appellant was provided an extension of benefits to the end of the semester during which his delimiting date was reached.  This was the latest date that could be provided under 38 C.F.R. § 21.3041(g)(2)(i). 

Further, the appellant's application for DEA benefits was originally received in January 2008, and the record shows that he was continuously enrolled in an education program from January 2008 until the delimiting date of December 17, 2010.  That is, it is not shown or argued that the appellant had to suspend his program of education from the time he began to receive the education benefits in 2008.  As such, there is no basis for extending his delimiting date based on suspension of an education program due to conditions beyond the appellant's control under 38 C.F.R. § 21.3041(g)(1).  The appellant has argued that he did not pursue his education because he was unaware of his entitlement for many years, not having been informed by the Veteran at the time he was awarded his permanent and total disability.  However, the exception to extend the delimiting date based on suspension of a program presumes that the individual has already begun his program, which is not the case for the appellant.  Indeed, the statutory provision regarding this exception speaks of the suspension of a program "after having enrolled in such program within the time period applicable to such person."  38 U.S.C.A. § 3512(c).   

In sum, there are no applicable statutory and regulatory provisions that allow the appellant to extend the delimiting date beyond December 17, 2010.  See 38 U.S.C.A. § 3512(c); see also 38 C.F.R. § 21.3041(g)(1).  The Board finds that the appellant is entitled to basic eligibility of 8 years, as specified by 38 U.S.C.A. § 3512(a)(3).  However, the limitations of extending the delimiting date, found at 38 C.F.R. § 21.3041(g)(1), apply in this case and prohibit any further extension of his delimiting date than that already provided by the RO.  The appellant was paid educational assistance benefits beyond his initially established delimiting date of November 23, 2010 until the end of his semester in December 2010.  There is no legal basis for extending his delimiting date past December 17, 2010.  For the foregoing reasons, the appellant's claim must be denied.


ORDER

An extension of the delimiting date for Dependents' Educational Assistance benefits under Chapter 35, Title 38, of the United States Code, beyond December 17, 2010, is denied.



____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs