Citation Nr: 1337270 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 11-14 285 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas 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 June 21, 2010. WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran served on active duty from July 1969 to July 1971. The appellant is his adult child. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 decision of the RO in Muskogee, Oklahoma, which denied entitlement to an extension of the delimiting date for DEA benefits beyond June 21, 2010. The appellant resides in Texas and her claim is now being addressed by the RO in Houston. The appellant testified before the undersigned at a September 2011 videoconference hearing. A transcript has been associated with the file. FINDINGS OF FACT 1. The Veteran was rated as permanently and totally disabled due to service-connected disabilities effective January 17, 2002. 2. The Veteran was notified of the total and permanent disability rating on June 21, 2002. 3. The appellant was between the ages of 18 and 26 at the time of the Veteran's award of service-connected permanent and total disability. 4. The appellant did not suspend pursuit of education due to circumstances beyond her control. 5. The June 21, 2010 delimiting date did not fall within an educational term. CONCLUSION OF LAW The criteria for an extension of the delimiting date beyond June 21, 2010 for DEA benefits under Chapter 35, Title 38, United States Code, have not been met. 38 U.S.C.A. §§ 3501, 3512, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 21.1031, 21.1032, 21.3021, 21.3040, 21.3041, 21.3043 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating their claims for DEA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 21.1031, 21.1032, 21.3030. In this case, the relevant facts are not in dispute. The provisions pertaining to VA's duties to notify and to assist do not apply to a claim if resolution of that claim is based on legal interpretation, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also VAOPGCPREC 2-2004. There is no possibility that any additional notice or development would aid the appellant in substantiating her claim. Thus, any deficiency of notice or of the duty to assist constitutes harmless error. Extension of Delimiting Date The record reflects that the appellant is the Veteran's child, and that the Veteran was found to have total and permanent disability rating from a service-connected disability, effective January 17, 2002. Basic eligibility for Chapter 35 benefits was established for the appellant by the RO, and she has utilized some of these benefits. See 38 U.S.C.A. § 3501; 38 C.F.R. § 21.3021(a)(1)(i). The eligibility period for use of DEA benefits by a child generally runs from the child's eighteenth and twenty-sixth birthdays. 38 U.S.C.A. § 3512(a); 38 C.F.R. § 21.3041(a). Where the effective date of the veteran's permanent and total disability rating occurs between the child's eighteenth and twenty-sixth birthdays, an extension of the eligibility period may be granted, up to a period of eight years. 38 C.F.R. § 21.3041(a)(2)(ii). The beginning date of eligibility will be the effective date of the rating or the date of notification to the veteran from whom the child derives eligibility, whichever is more advantageous to the eligible child. Id. The RO established the June 21, 2010 delimiting date as it is the most advantageous possible delimiting date for the appellant. The record reflects that the appellant was born in June 1981. The Veteran was awarded a permanent and total rating in a June 2002 rating decision, effective January 17, 2002. Notice of the award was sent to the Veteran on June 21, 2002. Accordingly, the appellant was between the ages of 18 and 26 at the time of the award of a permanent and total rating. The notice of the award was later than the effective date of the award; therefore, the choice of June 21, 2002 as the beginning of the eligibility was most favorable to the appellant. The delimiting date of June 21, 2010 was correctly assigned. See 38 C.F.R. § 21.3041(a). An extension may be granted beyond that eight year period if an eligible child suspends pursuit of his or her program due to conditions that VA determined were beyond the child's control. 38 C.F.R. 21.3041(g)(1). VA may consider the following circumstances 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. (e) Active duty, including active duty for training in the Armed Forces. 38 C.F.R. § 21.3043. The appellant requests that her delimiting date be extended on the basis that she was unaware of the DEA benefits and would have enrolled sooner had she known. Both her testimony before the undersigned and her statements in support of this appeal are to the effect that she had been unaware of DEA benefits until talking to a friend. She applied in August 2008 immediately after discovering the existence of DEA benefits. She also indicates that her father, the Veteran, was unaware of DEA benefits until she told him. Her May 2011 Form 9 reports that the Veteran had been hospitalized and was on substantial medication at the time of the award of permanent and total disability. She reported that she applied for financial aid and student loans prior to receiving DEA benefits and had used some of her DEA benefits to pay off student loans. She testified that the DEA benefits had allowed her to finish more quickly because she did not have to work and attend school at the same time. Unfortunately, lack of knowledge about benefits is not a basis for an extension. See 38 C.F.R. §§ 21.3041, 21.3043. The Board is sympathetic to the appellant's claims that the Veteran was unaware of this potential benefit for her, but VA does act to notify potential DEA beneficiaries. Whenever a permanent and total disability evaluation is established, as occurred in this case in 2002, VA automatically raises and decides eligibility to DEA benefits in the same decision regardless of whether there appear to be any potential dependent-beneficiaries. See M21-1MR IV.ii.2.F.27.i. The appellant submitted the codesheet portion of a February 2008 rating decision sent to the Veteran in support of her claim, but at the bottom of the coding an entry states that basic eligibility to DEA benefits had been previously granted. Although he may not have read or even understood the decision, the Veteran did receive actual notice well prior to the appellant's August 2008 application. The Board cannot extend the delimiting date based on the Veteran's failure to understand or communicate the DEA eligibility determination to the appellant prior to August 2008. At most, the appellant's contentions raise financial obligations as a basis for an extension of her delimiting date. Her August 2010 claim for an extension indicates that she needed the benefits to pay for her master's degree program. Her September 2010 Notice of Disagreement states that she planned to use DEA and student loans to pay for graduate school and that she had no other financial aid to help pay tuition. Financial obligations occurring after the delimiting date are not a basis for an extension and need not be considered further. The record reflects that the appellant was continuously pursued in an education program from August 2005 through the June 2010 delimiting date. Her original August 2008 application for DEA benefits indicates that she had pursued an associate's degree from August 2005 to May 2007. Information obtained from Texas A&M University shows that the appellant matriculated in August 2007. The appellant reported in her Notice of Disagreement that she graduated with a bachelor's degree in May 2010 and entered a master's degree program beginning in August 2010, also at Texas A&M University. Both the appellant's submissions in support of her original DEA claim and in support of this appeal show that she pursued her education program continuously from August 2005 to June 2010. The appellant indicated during her hearing before the undersigned that she had continuously pursued school without interruption. The Board finds that the appellant was not precluded from pursuing her education for the August 2005 to June 2010 period due to financial obligations. Evidence has not been offered to explain the appellant's failure to initiate an educational program between June 2002 and August 2005. The appellant's statements in support of this appeal and her testimony before the undersigned do not describe this period in detail. Her August 2008 DEA application states that she had been employed as a waitress for almost six years at that time, which would place starting that employment in the fall of 2002. Her testimony indicates that the appellant's parents could not pay her tuition and that she needed the free financial aid application FAFSA (Free Application for Federal Student Aid) and student loans to pursue her education. She also indicated that she did hold a job, but not full time, while receiving financial aid. The Board takes judicial notice of the fact that U.S. Department of Education programs offering financial aid and student loans, including financial need based programs, were available to the general public between June 2002 and August 2005. Considering the facts that the appellant utilized need based financial aid and attended school while working as a waitress for three academic years beginning in August 2005 and that need based financial aid was available prior to August 2005 at a time when the appellant had employment, the Board finds that the preponderance of the evidence shows that the appellant was not precluded from pursuit of an educational program due to financial obligations prior to August 2005. Thus, the Board finds that the preponderance of the evidence demonstrates that financial obligations did not preclude the appellant from pursuing an education program at any time between June 21, 2002 and June 21, 2010. The appellant has not raised and the evidence of record does not otherwise suggest that obligations as part of an established church, immediate family, unavoidable conditions of employment, her own illness or illness or death in her immediate family, or service in the Armed Forces precluded the appellant from pursuing an education program at any time prior to June 21, 2010. In light of the foregoing, the Board finds that the appellant did not suspend pursuit of her education program due to conditions beyond her control. An extension of her delimiting date is not warranted on that basis. See 38 C.F.R. §§ 21.3041(g)(1), 21.3043. Notwithstanding these potential extension provisions, VA may extend the period of eligibility to the end of a term (quarter or semester or end of course) in which the delimiting date falls, with exceptions not applicable here. 38 U.S.C.A. § 3512(c); 38 C.F.R. §§ 21.3040(d), 21.3041(g)(2). Information provided by Texas A&M shows that the appellant had been enrolled for the spring semester ending in May 2010 and for the fall semester beginning on August 27, 2010. Her delimiting date fell outside of a term; therefore, an extension of the delimiting date is not warranted on that basis either. The Board has found that that the appellant did not suspend pursuit of her education program due to conditions beyond her control and that her June 21, 2010 delimiting date did not fall within an educational term. There are no other legal bases for the award of an extension of her delimiting date for DEA benefits. 38 C.F.R. §§ 21.3041, 21.3043. As such, the Board finds that the preponderance of the evidence is against the appellant's claim. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. § 3.102. ORDER Entitlement to an extension of the delimiting date for DEA benefits beyond June 21, 2010 is denied. ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs