Citation Nr: 1335117	
Decision Date: 11/01/13    Archive Date: 11/13/13

DOCKET NO.  12-14 429A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUE

Entitlement to extension of basic eligibility to Dependents' Educational Assistance benefits under Chapter 35, Title 38, United States Code (Chapter 35 education benefits) beyond February [redacted], 2012.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Appellant


ATTORNEY FOR THE BOARD

Terrence T. Griffin, Counsel


INTRODUCTION

Pursuant to 38 C.F.R. § 20.900(c) (2013), the appeal has been advanced on the Board's docket.  38 U.S.C.A. § 7107(a)(2) (West 2002).

The Veteran had active service from August 1981 to October 1985.  The appellant is the Veteran's child.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2011 administrative decision of the Department of Veterans Affairs (VA) Atlanta, Georgia, Regional Office (RO).  The appellant now resides within the jurisdiction of the New Orleans, Louisiana, RO.  

In September 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) and a transcript of the proceeding is of record.


FINDINGS OF FACT

1.  In December 2007, the Veteran was granted a 100 percent disability rating and her son, the appellant, is an eligible party for Chapter 35 education benefits.  

2.  The appellant has reached the age of 27, has a legal disability, and was precluded from continuing a course of education due to matters outside of his control.  


CONCLUSION OF LAW

The criteria for extension of basic eligibility to Chapter 35 education benefits beyond February [redacted], 2012, have been met.  38 U.S.C.A. §§ 3500, 3501, 3511 (West 2002); 38 C.F.R. §§ 21.3020, 21.3021, 21.3044, 21.3300 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  The Board is granting in full the benefit sought on appeal.  Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed.

The Veteran has been rated 100 percent disabled since December 8, 2007; her son is the appellant and is an eligible person under the provisions governing Chapter 35 education benefits.  On February [redacted], 2012, the appellant reached the age of twenty-six; basic entitlement to Chapter 35 education benefits are generally precluded after this date.  See 38 U.S.C.A. §§ 3501(a)(1)(A), 3512(a); 38 C.F.R. § 21.3040.  

In June 2007, it was determined that the appellant's best interests were served by placing him in an in-patient psychiatric facility because of diagnosed schizophrenia, paranoid type.  It was not until his October 2010 transition to a secure state operated group home that the appellant was able to commence post-secondary education, which he planned to commence in September 2011.  

An April 2011 award letter notified the appellant that he had 45 months of full-time Chapter 35 education benefits, which had to be used prior to February [redacted], 2012.  

In an April 2011 statement, the appellant notified VA that involuntary psychiatric hospitalization precluded his pursuit of post-secondary education and that he would not be able to enroll in an education program until September 2011 because he would be transferring to a secure state group home.  

An October 2011 private physician's statement indicates that diagnosed schizophrenia, paranoid type, prevented the appellant from working or attending school until October 4, 2011.  

The appellant would have been eligible for extension of the basic period of eligibility for Chapter 35 benefits beyond the age of twenty-six if he initially enrolled in a program of education and subsequently suspended the program for reasons beyond his control, but the record does not reflect enrollment in an educational program prior to ceasing his course of education.  See 38 C.F.R. § 21.3041(g).  At his September 2013 Board hearing, the Veteran indicated that he had enrolled in a community college, but was not in receipt of Chapter 35 education benefits.  

It is not in the appellant's best interest to prevent extension of his basic period of eligibility to Chapter 35 education benefits because of his failure to enroll (i.e., initially act) in a course of study and for reasons beyond his control.  

The evidence clearly demonstrates he has a legal disability, and matters beyond his control (i.e., psychiatric difficulties) would have prevented continued pursuit of a course of education.  See 38 U.S.C.A. § 3501(c).  VA regulations governing the administration of Chapter 35 education benefits indicate the appellant shall not be required to take the aforementioned initial action.  Id.  Extension of basic eligibility to 35 education benefits beyond February [redacted], 2012 is warranted.  





ORDER

Extension of basic eligibility to DEA benefits under Chapter 35, Title 38, United States Code beyond February [redacted], 2012, is granted.



____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs