Citation Nr: 18140086 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 15-07 865 DATE: October 2, 2018 ORDER Entitlement to educational assistance benefits in excess of 45 months under the Dependent’s Educational Assistance (DEA) program is denied. FINDING OF FACT The evidence does not show that the appellant requires an extension to pursue special restorative training or that he qualifies for courses under the special assistance for the educationally disadvantaged program. CONCLUSION OF LAW The criteria for entitlement to DEA program benefits in excess of 45 months have not been met. 38 U.S.C. §§ 3501, 3511, 3512; 38 C.F.R. §§ 21.3020, 21.3021, 21.3041, 21.3044, 21.3300, 21.3344. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1965 to March 1969, and he died in March 2018. The appellant is the Veteran’s son. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 decision issued by a Veterans Affairs (VA) Regional Office (RO). In March 2017, the appellant testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. At such time, the appellant submitted additional evidence for consideration in his appeal. 38 U.S.C. § 7105(e)(1). Entitlement to educational assistance benefits in excess of 45 months under the DEA program. DEA program requirements are set forth in Chapter 35, Title 38, United States Code. See 38 U.S.C. §§ 3501, 3512. Under this program, 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. § 3512(a); 38 C.F.R. § 21.3041. Educational assistance may not exceed a period of 45 months or the equivalent thereof in part-time training, and the 45-month period of entitlement need not be consecutive, but must be completed before the period of eligibility lapses. 38 U.S.C. § 3511(a); 38 C.F.R. §§ 21.3020(b), 21.3044(a)-(b). The 45-month limitation may be exceeded only where no charge against the entitlement is made based on a course or courses pursued by a spouse or surviving spouse under the special assistance for the educationally disadvantaged program, or where special restorative training authorized under law exceeds 45 months. 38 U.S.C. § 3511(a); 38 C.F.R. §§ 21.3020(b), 21.3044(c), 21.3300(c), 21.3344. In the present case, the appellant was born in April 1982, he was awarded DEA benefits as of December 21, 2005, based on the Veteran’s receipt of service-connected disability benefits, and the current end date for the appellant’s use of DEA benefits is March 29, 2015. See February 2007 DEA Award Letter; see also October 2014 Decision. The record shows that the appellant has made regular use of his DEA benefits since his initial award and the matter that is currently before the Board is whether the appellant is entitled to an extension of those benefits beyond the 45 months established by law. In support of his claim for benefits in excess of 45 months, the Veteran asserted that an extension is necessary to pursue a dual degree in a program that will take 3 to 4 years to complete. See October 2014 Correspondence; see also December 2014 Notice of Disagreement. After reviewing the record, however, the Board finds no legal basis to support the award of an extension of his DEA benefits. Therefore, the appeal must be denied. It must be emphasized that, generally, an eligible child has a period of 45 months to use their benefits and, in order meet the criteria for entitlement to benefits in excess of 45 months, the appellant must require special restorative training or special assistance for the educationally disadvantaged. Upon careful review of the record, the Board finds that the evidence does not show that the appellant requires special restorative training. 38 U.S.C. § 3540; 38 C.F.R. § 21.3300. The evidence also fails to show that he requires special assistance for the educationally disadvantaged. 38 C.F.R. §§ 21.3044(c), 21.3045, 21.3344. Thus, an extension in not warranted under the circumstances outlined in 38 C.F.R. § 21.3300(c) or as specified in 38 C.F.R. § 21.3044(c). 38 C.F.R. § 21.3020(b). As the appellant’s assertions do not fit within the narrowly defined circumstances under which more than 45 months of Chapter 35 DEA may be awarded, there is no legal basis for an extension of DEA beyond the current March 29, 2015, end date. See October 2014 Decision. In this regard, while the Board is sympathetic to his claim, the law is dispositive of the issue. Therefore, the appeal must be denied. 38 U.S.C. §§ 3501, 3511, 3512; 38 C.F.R. §§ 21.3020, 21.3021, 21.3041, 21.3044, 21.3300, 21.3344; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. C. Wilson, Counsel