Citation Nr: 20007146 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 15-22 690 DATE: January 28, 2020 ORDER An extension of the delimiting date for education benefits for the appellant under Chapter 35, Title 38, United States Code (Dependents’ Educational Assistance (DEA)), is denied. FINDING OF FACT The appellant did not submit a timely request for an extension of her delimiting date for education benefits under Chapter 35 (DEA), and good cause has not been shown for extending the time limit for filing such a request. CONCLUSION OF LAW The criteria for an extension of the delimiting date for education benefits for the appellant under Chapter 35 (DEA) have not been met. 38 U.S.C. §§ 3500, 3501, 3510, 3512; 38 C.F.R. §§ 3.807, 21.1033, 21.3041. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1975 to October 1979. The appellant in his daughter. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2015 determination by the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma. In November 2019, the appellant was notified of the time and place of a Board hearing she had requested in connection with the present appeal. See 38 C.F.R. § 20.704(b). She failed to report, however, and no motion for rescheduling has been received. Accordingly, the Board will process her appeal as though the request for hearing has been withdrawn. 38 C.F.R. § 20.704(d). Entitlement to an extension of the delimiting date for education benefits under Chapter 35 (DEA) for the appellant Basic eligibility for Chapter 35 benefits for the child or surviving spouse of a veteran is established if: (1) the veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran's death; or (4) the veteran died as a result of a service-connected disability. 38 U.S.C. §§ 3500, 3501, 3510; 38 C.F.R. § 3.807. Here, basic eligibility for Chapter 35 based upon the Veteran’s service was established by a September 2000 rating decision, effective April 4, 2000. Further, the appellant's eligibility for Chapter 35 DEA benefits as the child of the Veteran is not in dispute. Rather, the issue in this case is whether she is entitled to an extension of the delimiting date for such benefits. The eligibility period for use of Chapter 35 DEA benefits by a child generally runs from the child's 18th to 26th birthdays. 38 U.S.C. § 3512(a); 38 C.F.R. § 21.3041(a). In this case, the appellant was born in June 1985, and the initial delimiting date of June 13, 2011 is consistent with her 26th birthday. In certain situations, the delimiting date may be modified or extended beyond an eligible person's 26th birthday, but generally not past his or her 31st birthday. 38 U.S.C. § 3512; 38 C.F.R. § 21.3041(g). The provisions of 38 C.F.R. § 21.3041(g) set forth the three exceptions. First, the period of eligibility ending date may be extended if an education program has been suspended due to conditions determined to be beyond the eligible person's control as listed at 38 C.F.R. § 21.3043. If it is found that a suspension of a program of education was in fact due to conditions beyond the eligible person's control, then the ending date may be extended for the length of the period of suspension, but not beyond the eligible person's 31st birthday. See 38 C.F.R. § 21.3041(g)(1). Second, if an eligible person's period of eligibility ending date occurs while the person is enrolled in an educational institution, VA may extend the period of eligibility in two circumstances: (i) for a child enrolled in an educational institution that regularly operates on the quarter or semester system, the ending date may be extended to the end of the quarter or semester; or (ii) for a child who completes a major portion of a course while enrolled in an educational institution that operates under other than a quarter or semester system, the ending date may be extended to the end of the course, but not to exceed 12 weeks. See 38 C.F.R. § 21.3041(g)(2). Extensions under this provision may be made beyond age 31. Id. The third and final exception allows a delimiting date extension where an eligible child is ordered to active duty or involuntarily ordered to full-time National Guard duty during his or her period of eligibility. 38 C.F.R. § 21.3041(h). Here, the record reflects the appellant’s extension request was initiated by statements from her and the Veteran dated in October 2014, but date stamped as having been received by VA November 28, 2014. In essence, the appellant and the Veteran both contend that the appellant was unable to pursue her education for several years due to circumstances beyond her control, to include family obligations that arose as a result of the Veteran’s medical disabilities. The appellant has stated that such period ran from 2004 to 2009, while the Veteran states that she did not pursue her education from 2004 to 2010. The law mandates that a claimant has one year from the end of his or her delimiting date to file a request for an extension, or one year from the date on which a pertinent physical or mental disability no longer prevented him or her from beginning or resuming a chosen program of education and/or one year from the date on which the condition that caused the suspension of the program of education ceased to exist. See 38 C.F.R. § 21.1033(c)-(d). The 2014 extension request was more than one year after the end of the original delimiting date in June 2011, more than one year after 2009 (when the appellant reported that the circumstances which prevented her from successfully pursuing her education had ended), and more than one year after 2010 (the end point of the period during which the Veteran reported that the appellant did not pursue her education). The time limit for filing requests for extension of the delimiting date of Chapter 35 benefits may be extended when a claimant establishes good cause for the untimely request. 38 C.F.R. § 21.1033(e). However, good cause has not been shown in this case. The appellant stated in her February 2015 Notice of Disagreement (NOD) that she and the Veteran started the extension earlier than November 28, 2014 and the information was lost twice; but also stated that they began the extension request in October 2014. The Board has already noted above that an October 2014 request would still be untimely. Moreover, the appellant has not reported that there were any circumstances which prevented her from filing an extension request prior to October 2014; nor is such otherwise demonstrated by the evidence available for review. In light of the foregoing, the Board must find that the appellant’s extension request was not timely. As such, the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (where the law and not the evidence is dispositive of the issue before the Board, the claim must be denied because of the absence of legal merit or the lack of entitlement under the law.). In making the above determination, the Board notes that the January 2015 denial letter, as well as the appellant’s February 2015 NOD, refers to the delimiting date as February 15, 2013. However, the Statement of the Case and the appellant’s Substantive Appeal note the June 2011 delimiting date, which is consistent with the appellant’s 26th birthday. Further, SHARE print screens contain multiple notes that the delimiting date was in June 2011. In any event, the 2014 extension request would still be more than one year from that delimiting date (i.e., the extension request would still be untimely). For all these reasons, the benefit sought on appeal must be denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Kitlas, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.