Citation Nr: 20009636 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 15-39 790 DATE: February 6, 2020 ORDER Entitlement to Dependents Educational Assistance (DEA) benefits under Chapter 35, Title 38 of the United States Code, is denied. FINDING OF FACT When the appellant’s claim for DEA benefits was received on January 9, 2015, she was already over the age of 31. CONCLUSION OF LAW The criteria for entitlement to DEA benefits under Chapter 35, Title 38 of the United States Code, have not been met. 38 U.S.C. §§ 3501, 3512 (2012); 38 C.F.R. §§ 21.3041, 21.3043 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant seeks entitlement to DEA benefits based on her being the child of a veteran who died of a service-connected disability. As explained below, the appellant is not entitled to DEA benefits as she had already reached the age of 31 prior to receipt of her claim. The appellant, who was born in April 1981, is the daughter of the Veteran. A May 2013 rating decision granted service connection for the cause of the Veteran’s death. This decision also granted basic eligibility to Dependents Educational Assistance, effective from December 1, 1994, for purposes of retroactive benefits. The appellant’s claim for DEA benefits was received in January 2015. The Board notes that the appellant has not made a claim for retroactive DEA benefits and a claim for retroactive benefits is not currently before the Board. Furthermore, even if she had made a claim for retroactive DEA benefits, her claim was received more than a year after the May 2013 rating decision that granted service connection for cause of death. Consequently, retroactive benefits would not be payable. See 38 U.S.C. § 5113; 38 C.F.R. § 21.4131(e). In this case the Veteran died in 1994, prior to the appellant’s 18th birthday. Her DEA eligibility period was from April [REDACTED], 1981, her 18th birthday, until April [REDACTED], 2007, her 26th birthday. See 38 C.F.R. §§ 21.3041(b). Under Chapter 35, a child’s period of eligibility generally begins on either the earlier of the child’s 18th birthday or successful completion of the child’s secondary schooling. 38 U.S.C. § 3512; 38 C.F.R. § 21.3041(a). The delimiting (ending) date for such benefits is the eligible child’s 26th birthday. 38 U.S.C. § 3512; 38 C.F.R. § 21.3040. 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). First, an end-date extension may be granted 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. 38 C.F.R. § 21.3041(g)(1). Second, if an eligible person’s period of eligibility ends 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. Extensions under this provision may be made beyond age 31. 38 C.F.R. § 21.3041(g)(2). 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/her period of eligibility. 38 C.F.R. § 21.3041(h). (Continued on the next page)   The record does not show that the appellant met any of the exceptions under 38 C.F.R. § 21.3041(g) for an extension past reaching the age of 31. Specifically, she has not alleged, and the record does not show, that she participated in an educational program for which VA could extend the delimiting date for the length of the period of suspension until the end of the quarter or semester, or until the end of the course (but not to exceed 12 weeks). 38 C.F.R. § 21.3041(g)(1), (2). Additionally, it is clear from the record that the appellant was not ordered to active duty or involuntarily ordered to full-time National Guard duty during her period of eligibility from April 16, 1981 to April 16, 2007. 38 C.F.R. § 21.3041(h). Although the Board is sympathetic to the appellant’s contentions, it is bound by applicable law and regulations when determining a claim for VA benefits. Here, the regulatory criteria governing eligibility for DEA benefits under 38 U.S.C. Chapter 35 are specific, and the Board is bound by them. Pursuant to these criteria, there is no basis upon which to grant DEA benefits beyond her 31st birthday. Thus, the Board finds that entitlement to DEA benefits must be denied. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Jones, 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.