Citation Nr: 18147122 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 15-10 137A DATE: November 2, 2018 ORDER An extension of the delimiting date for Dependents’ Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code, to October 26, 2017, but no later, is granted. REMANDED The issue of entitlement to an extension of the Appellant’s DEA benefits beyond 45 months is remanded for further development. FINDINGS OF FACT 1. The Veteran was found to have a 100 percent permanent and total service-connected disability in a rating decision dated May 21, 2004. Additionally, in this rating decision, VA established basic eligibility to DEA benefits, effective July 11, 2003. Notification of this rating decision was sent on May 26, 2004. 2. The Veteran and Appellant were married on October 26, 2007. CONCLUSION OF LAW The criteria for an extension of the delimiting date for DEA benefits to October 26, 2017, but no later, are met. 38 U.S.C. §§ 3501, 3511, 3512, 5107; 38 C.F.R. §§ 3.102, 21.3021, 21.3040, 21.3041, 21.3043; Cypert v. Peake, 22 Vet. App. 307 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1970 to August 1970 and from October 1974 to April 1976. The Appellant is the Veteran’s spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 letter of the Department of Veterans’ Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma which informed the Appellant that her delimiting date for DEA benefits was May 26, 2014. Delimiting Date A person is eligible for DEA benefits if he or she is the spouse of a veteran who has a permanent and total disability rating. 38 U.S.C. § 3501(a)(1)(D)(i); 38 C.F.R. § 21.3021(a)(3)(i). Eligibility for such benefits extends 10 years from the date (as determined by the Secretary) the person becomes an eligible person within the meaning of 38 U.S.C. § 3501(a)(1). 38 U.S.C. § 3512(b)(1)(A). As indicated above in the Findings of Fact section, the Veteran was awarded a 100 percent permanent and total service-connected disability in a rating decision dated May 21, 2004. He was notified of that decision on May 26, 2004. The RO used the May 26, 2004 date as the trigger for calculating the delimiting date for the Appellant’s DEA benefits. However, the Veteran and the Appellant married on October 26, 2007. In Cypert v. Peake, the United States Court of Appeals for Veterans Claims (Court) addressed the calculation of the delimiting date for DEA benefits when an individual marries a veteran over 10 years past the date VA determined that veteran to be permanently and totally disabled as a result of service-connected disabilities. 22 Vet. App. 307 (2008). In that case, the Court first noted that the term “eligible person” for DEA purposes contained 2 elements. Id. at 309. First, a person could not become eligible unless that person is a spouse. Id. Next, that person must be a spouse of another who has a total disability permanent in nature resulting from service-connected disabilities. Id. (citation omitted). Accordingly, the Court held that a person becomes an “eligible person” for the purposes of triggering the 10-year eligibility period for DEA benefits when that person married the qualifying spouse. Id. at 309-10. Applying the holding of Cypert to the instant case, the Appellant became an “eligible person” on October 26, 2007—the date she and the Veteran were married. Accordingly, the date of marriage triggered the 10-year eligibility period for DEA benefits. As such, the actual delimiting date in this case was October 26, 2017, not May 26, 2014. Thus, the Appellant’s appeal is granted to that extent. REASONS FOR REMAND The Appellant and the Veteran have contended that the Appellant had limited English language skills when she first attempted to enroll in educational courses in the United States, and, accordingly, VA incorrectly calculated the usage of her 45 months of DEA benefits by counting time spent in remedial language classes. In essence, the Appellant is contending that she should have been permitted to exceed her 45 months of entitlement as she was enrolled in courses under the special assistance for the educationally disadvantaged program, or, alternatively, her courses learning English language skills should be considered special restorative training. Although the Appellant mentioned her English language difficulties in April and September 2014 statements, the February 2015 statement of the case (SOC) never addressed the Appellant’s request to exceed her 45 months of benefits. Accordingly, the Board remands the issue for the issuance of an SOC addressing the Appellant’s contentions revolving around the calculation of her 45 months of benefits. The matter is REMANDED for the following action: Issue an SOC addressing the issue of an extension of the Appellant’s DEA benefits beyond 45 months. In particular, please address the Appellant’s contentions regarding application of the special assistance for the educationally disadvantaged program and whether taking English language skills classes should have been considered special restorative training. The Appellant is hereby notified that, following the receipt of this SOC, she must file a timely substantive appeal (VA Form 9) if she desires appellate review of this issue by the Board. If, and only if, a timely substantive appeal is filed, this issue should be returned to the Board for appellate review. (Signature on Next Page) S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.S. Pettine, Associate Counsel