Citation Nr: 18149276 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 13-10 862 DATE: REMANDED The claim of entitlement to an extension of the delimiting date beyond October 4, 2012, for Dependents Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1972 to June 1975. The appellant in this case is the Veteran’s son. This appeal to the Board of Veterans’ Appeals (Board) arose from an October 2012 determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, informing the appellant that he could not be approved for payment of DEA benefits. The appellant disagreed with that decision and perfected an appeal to the Board. The Board notes that in his VA Form 9 (Appeal to Board of Veterans’ Appeals), the appellant requested a Board hearing videoconference hearing for his claim. The appellant was initially scheduled for such a hearing on a date in September 2016, but did not report for that hearing. As determined by the Board in an October 2016 action, however, it appears that the appellant may not have received notice of the scheduled hearing. The Board thus remanded the matter for the appellant to be scheduled for a new Board hearing, with instructions that the hearing notice be sent to the address provided by the appellant in an August 2016 report of contact. In March 2017, the RO sent to the appellant a letter notifying him that he had been scheduled for a Board hearing to be held on April 27, 2017. The letter was sent to the address provided by the appellant in the August 2016 report of contact. That notification letter was also returned as undeliverable. No forwarding address was provided. Notably, the address to which the hearing notification was sent is the current address of record for the appellant and no alternative address has been provided. The Board notes that a claimant has the duty to keep VA apprised of his whereabouts. Hyson v. Brown, 5 Vet. App. 262, 265 (1993). If he/she does not, “there is no burden on the part of the VA to turn up heaven and earth to find him.” Id.; see also Wood v. Derwinski, 1 Vet. App. 190, 193, (1991). Thus, although the letter notifying the appellant of the appellant of his scheduled was returned as undeliverable, because the Board has no alternative address for the appellant, the Board concludes that reasonable attempts have been made to afford the appellant his requested hearing and will now proceed with to consider the matter currently before it. Unfortunately, the Board’s review of the claims file reveals that further agency of original jurisdiction (AOJ) action on the claim, prior to appellate consideration, is warranted. Basic eligibility for Chapter 35 benefits can be established in several ways, including being the child of a veteran who has a total disability permanent in nature resulting from a service-connected disability. See 38 U.S.C. § 3501(a)(1)(A)(ii); 38 C.F.R. § 3.807(a)(3)(i). In this case, the appellant’s basic eligibility for DEA benefits as the Veteran’s son is not in dispute, as he has been found eligible for these benefits. Rather, the dispute in this case is the delimiting date for such benefits. Where, as here, a veteran who is found to be permanently and totally disabled after the child’s 18th birthday and before the child’s 26th birthday, the child can elect as a beginning date of eligibility the effective date of the veteran’s total and permanent rating, the date of notification, or any date in between. See 38 U.S.C. § 3512(b)(1); 38 C.F.R. § 21.3041. When a veteran is evaluated as permanently and totally disabled after the child’s 18th birthday but before the child’s 26th birthday, the ending date for eligibility for DEA benefits is 8 years after the effective date of the Veteran’s permanent and total evaluation. 38 C.F.R. §§ 21.3040; 21.3041(a)(2). In the instant case, the Veteran was found to be totally and permanently disabled, effective September 14, 2004, via rating decision dated on October 4, 2004, notice of which was sent to the Veteran on October 5, 2004. The rating decision also established basic eligibility for DEA benefits effective September 14, 2004. The appellant initially applied for DEA benefits in November 2004. At that time, he was informed that he had 8 years from his chosen beginning to use his DEA benefits. He was later issued a Certificate of Eligibility informing him that he had 45 months of full-time benefits to use on or before October 4, 2012. Notably, although the appellant was approved for use of DEA benefits in 2004, there is no indication that DEA benefits were in fact ever disbursed. Then, on October 12, 2012, the appellant again inquired as to the availability of DEA benefits, stating that he was then currently a sophomore at Boise State University in Boise, Idaho, and was enrolled in Bachelor of Arts degree program. The appellant also explained that his prior attempt at obtaining a degree in 2005 was unsuccessful due to health issues. In support of that assertion, he submitted a letter from his primary care physician who indicated that appellant had been unable to complete his coursework in 2005 due to issues with depression and anxiety. Via letter dated October 17, 2012, the RO informed the Veteran that it could not approve his claim for DEA benefits. Specifically, the appellant was informed that VA could not pay benefits after October 4, 2012, because although he was prevented from pursuing a degree program for reasons outside of his control, applicable regulations pertaining to extensions of delimiting dates require an interruption of training. The RO also noted that VA regulations allow for payment of training taken in the year before receipt of the claim, until October 4, 2012. In the instant case, the appellant was born in April 1980; he thus turned 26 in April 2006 and 31 in April 2011. At the outset, the Board notes that the period of eligibility ending date may be extended if an education program has been suspended from the child’s 18th to the 26th birthdays, due to conditions determined to be beyond the eligible person’s control as listed at 38 C.F.R. § 21.3043. Here, the Board acknowledges the appellant’s argument that he was unable to pursue a degree program in 2005 due to his issue with depression. However, as noted by the RO, there is no indication that the appellant was ever in receipt of DEA benefits or that he had initiated a program of training that was interrupted due to circumstances beyond his control. That fact notwithstanding, the Board notes that governing law provides that the commencing date of an original award of educational assistance is the latest of: (a) the date the educational institution certifies the course; (b) one year before the date of receipt of the claim, or (c) the effective date of the approval of the course, or one year before VA receives approval notice, whichever is later. 38 U.S.C. § 3672; 38 C.F.R. § 21.4131(d). Further, although the delimiting date for DEA benefits may be not generally be modified or extended beyond an eligible person’s 31st birthday, 38 C.F.R. § 21.3041(g)(2) or (h) does set forth exceptions to the general policy. Specifically, 38 C.F.R. § 21.3041(g)(2) allows for extensions of the delimiting date beyond one’s 31st birthday so as to allow for completion of the course, quarter, or semester if the delimiting date occurs while the eligible person is enrolled in an educational institution. In the instant case, the Board finds that before it can adjudicate whether extension of the delimiting date beyond October 4, 2012, is warranted, further development is necessary. Specifically, further information with regard to the appellant’s enrollment at Boise State University is required, as it appears that the appellant may in fact be entitled to DEA benefits. Indeed, the law provides that DEA benefits may be paid one year before the date of receipt of the claim, which in the instant case would have been October 12, 2011. Further, although the Veteran had turned 31 in April 2011, 21.3041(a)(2)(ii) seemingly allows for an end date for receipt of DEA benefits that is past and eligible person’s 31st birthday, despite the fact that 38 C.F.R. § 21.3040 provides that “no person is eligible for educational assistance beyond his or her 31st birthday, except as provided under [38 C.F.R.] § 21.3041(g)(2).” Indeed, the appellant’s original “Certificate of Eligibility” provided for an end date of October 4, 2012, which was beyond the appellant’s 31st birthday. Thus, if the delimiting date of October 4, 2012, is correct, and the appellant was in an educational institution at that time, it would appear that he may be entitled to an extension of the delimiting date, at least until the end course, quarter, or semester. It would also appear that DEA benefits are payable during the year prior to receipt of the appellant’s application for Chapter 35 benefits on October 12, 2012. Here, at the time of his application for benefits, the appellant reported that he was a sophomore at Boise State University. Also, in a statement received in April 2013, the appellant indicated that he had “started school again in the fall of 2011.” Unfortunately, it does not appear as though the agency of original jurisdiction (AOJ) considered any of this evidence or undertook any additional development necessary to confirm the appellant’s enrollment prior to denying his claim for DEA benefits. Accordingly, the Board finds it necessary to remand the matter for the AOJ to undertake all development necessary to confirm the appellant’s enrollment from October 2011 forward and to readjudicate the issue of entitlement to DEA benefits, to include consideration of whether an extension of the delimiting date of October 4, 2012, is warranted pursuant to 38 C.F.R. § 21.3041(g)(2). While this matter is on remand, to ensure that the record is complete, the AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the appeal, explaining that she has a full one-year period to respond. See 38 U.S.C. § 5103(b)(1). But see 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other action deemed warranted prior to adjudicating the matter on appeal. The matter is hereby REMANDED for the following action: 1. Send to the appellant a letter requesting that he provide any additional information and/or evidence pertinent to the appeal. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 2. Conduct all development necessary to verify the appellant’s enrollment at Boise State University beginning in the fall of 2011, to include obtaining certification from that school. If additional information and/or action from the appellant is required, the AOJ should seek to obtain all required information, to include informing the appellant of his responsibilities in obtaining certification from any educational institution. All contact with the appellant, to include any attempt to contact the appellant, should be documented in the record. 3. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim on appeal considering in light of all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication of the claims) and legal authority. In adjudicating the claim, consider whether payment of DEA benefits is warranted in the year prior to receipt of the appellant’s October 12, 2012, for application for Chapter 35 benefits, as well whether an extension of the delimiting date beyond October 4, 2012, is warranted pursuant to 38 C.F.R. § 21.3041(g)(2). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Neilson, Counsel