Citation Nr: 19129486 Decision Date: 04/16/19 Archive Date: 04/16/19 DOCKET NO. 15-06 459 DATE: April 16, 2019 ORDER The claim of entitlement to Dependents Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code, is denied. FINDINGS OF FACT 1. The Veteran was found to be permanently and totally disabled by a rating decision dated in November 2003, effective from November 13, 2003, and he was notified of this effective date by correspondence enclosed with the rating decision that is dated December 1, 2003. 2. The appellant does not assert that she had a physical or mental disability that prevented her from initiating or completing a chosen program of eduction prior to the December 1, 2013, delimiting date. CONCLUSION OF LAW The criteria for entitlement to an extension of the delimiting date beyond December 1, 2013, for DEA benefits under the provisions of Chapter 35, Title 38, United States Code, are not met, and thus, the criteria for entitlement to DEA benefits are not met. 38 U.S.C. §§ 3501, 3512; 38 C.F.R. §§ 21.3021-21.3047. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1964 to June 1984. The appellant in this case is the Veteran’s spouse. This matter comes to the Board of Veterans’ Appeals (Board) from an October 2014 decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, denied the appellant’s claim for benefits under the DEA program after finding that the appellant’s delimiting date for receipt of DEA benefits had expired. In October 2015, the appellant testified during a Board videoconference hearing before the undersigned Veterans Law Judge with a representative from The American Legion, but the claims file does not document the appellant’s appointment of a representative. In light of the foregoing, the Board contacted the appellant in January 2019 to clarify whether she has a representative, but the appellant did not respond within thirty days as requested. Thus, the Board finds that the appellant does not have a representative and the Board may adjudicate the current appeal without prejudice to the appellant. 1. Entitlement to DEA benefits under Chapter 35, Title 38, United States Code. Basic eligibility for Chapter 35 benefits can be established in several ways, including being the spouse 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)(D)(i); 38 C.F.R. § 21.3021(a)(3)(i). In this case, the dispute is the delimiting date for such benefits. The beginning date of eligibility for the spouse of a veteran with a permanent and total disability evaluation effective after November 30, 1968, is the effective date of the veteran’s total and permanent rating, the date of notification of the total and permanent rating, or any date between the aforementioned dates, whichever is more advantageous to the spouse. 38 U.S.C. § 3512(b)(1); 38 C.F.R. § 21.3046(a). Educational assistance expires 10 years after one of the following occurs: (1) The date on which the Secretary first finds the spouse from whom eligibility is derived has a service-connected total disability permanent in nature; (2) the date of death of the spouse from whom eligibility is derived who dies while a total disability evaluated as permanent in nature was in existence; or (3) the date on which the Secretary determines that the spouse from whom eligibility is derived died of a service-connected disability. 38 U.S.C. § 3512(b)(1); 38 C.F.R. § 21.3021(a). However, the 10-year delimiting period may be extended if the eligible spouse: (1) applies for the extension within the appropriate time limit; (2) was prevented from initiating or completing the chosen program of education within the otherwise applicable eligibility period because of a physical or mental disability that did not result from the willful misconduct of the eligible spouse; (3) provides VA with any requested evidence tending to show that he or she was prevented from initiating or completing the program because of a physical or mental disability that did not result from the willful misconduct of the eligible spouse; and (4) is otherwise eligible for payment of educational assistance for the training pursuant to Chapter 35. See 38 U.S.C. § 3512(b)(2); 38 C.F.R. § 21.3047(a)(1)(i)-(iv). Here, in a November 2003 rating decision, the Veteran was found to be totally and permanently disabled, effective November 13, 2003, and basic eligibility to DEA was established from November 13, 2003. Notification of that decision was sent to the Veteran on December 1, 2003. Thus, the expiration date of the 10-year delimiting period for receipt of DEA benefits was December 1, 2013. Notably, the appellant does not dispute that VA received her application for DEA benefits in September 2014. During her October 2015 Board hearing, the appellant indicated that she and the Veteran were not notified that the appellant had 10 years to use DEA benefits when the Veteran was granted permanent total disability in November 2003. It was also noted that the appellant is a retired Army veteran and previously used Veterans Retraining Assistance Program (VRAP) benefits in light of guidance received from a “VA certified official” at her university and the Albuquerque RO. According to the appellant, those individuals advised her that she should use her VRAP benefits prior to using DEA benefits and she was not aware that she should have used her DEA benefits within 10 years. Additionally, the appellant testified that she did not have any physical or mental problems that prevented her from taking advantage of DEA benefits and asserted that the issue is strictly a time and communication problem, as the 10-year time limit was not noted on any forms. In a November 2014 notice of disagreement, the appellant reported that her VRAP application was accepted in August 2012, she then commenced a construction management program that met VRAP criteria, she inquired about advanced degrees in construction during the summer of 2013, and it was during the summer of 2013 that she learned about her potential eligibility for DEA benefits due to the Veteran’s total disability. By the time she was aware of her potential eligibility, the graduate school acceptance period had lapsed for entry in Fall 2013, so the “VA office” at her university recommended she continue using VRAP benefits until they were scheduled to run out in March 2014 while she worked on her graduate school application for admission in Fall 2014. Thereafter, she completed the construction management program in May 2014, was accepted to graduate school in July 2014, and began her application for DEA benefits with the aid of her university’s “VA campus office.” She asserts that she was not aware of a 10-year deadline to use DEA benefits until her benefits were denied by VA in October 2014 and “VA personnel at [her university] didn’t say anything about a deadline when [she] initially talked to them in 2013.” She asserts that she did everything requested of her in a timely manner based on information provided by local VA representatives. The Board observes that in the December 1, 2003, notification letter, the RO informed the Veteran that a dependent may be eligible for Chapter 35 DEA benefits and he was advised that VA pamphlet 22-73-3 (“Summary of Education Benefits”), which explains the program, had been enclosed for his review. Overall, the evidence shows that the appellant missed the deadline to obtain DEA benefits and was not prevented from initiating or completing the chosen program of education within the otherwise applicable eligibility period because of a physical or mental disability. The Board is sympathetic to the appellant’s position, but it has no authority to disregard the specific requirements enacted by Congress. Harvey v. Brown, 6 Vet. App. 416, 422-25 (1994). Thus, the appeal must be denied. See 38 U.S.C. §§ 3501, 3512, 5103A, 5107; 38 C.F.R. §§ 21.3046, 21.3047. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. C. Wilson, Counsel