Citation Nr: A21016455 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 200104-185663 DATE: October 6, 2021 ORDER An extension of the delimiting date for Dependents Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code, to December 13, 2019, but no later, is granted FINDINGS OF FACT 1. In December 2017, the appellant was awarded DEA benefits as the daughter of the Veteran; she was later informed that she had 45 months of benefits to use before August 31, 2019. 2. The evidence of record shows that the appellant's period of eligibility ended while she was enrolled in an educational institution that regularly operates on the semester system; the semester ended on December 13, 2019. CONCLUSION OF LAW The criteria for an extension of the delimiting date for receipt of DEA benefits to December 13, 2019, but not 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. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from October 1967 to October 1970. He died in April 2011. The appellant in this case is the Veteran's daughter. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2019 determination by the Department of Veterans Affairs (VA) Regional Office (RO) informing the appellant that her entitlement to DEA benefits expired on August 30, 2019. On January 4, 2020, the appellant filed a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) in which the appellant elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38C.F.R. § 20.301. Basic eligibility for Chapter 35 benefits can be established in several ways, including being the child of a veteran who died as a result of a service-connected disability. See 38 U.S.C. § 3501(a)(1)(A)(i); 38 C.F.R. § 3.807(a)(4). In this case, the appellant's basic eligibility for DEA benefits as the Veteran's daughter is not in dispute, as she has been found eligible for these benefits. Rather, the dispute in this case is the delimiting date for such benefits. Where, as here, eligibility for DEA benefits is derived as a result of a veteran's death, the law provides that an eligible child's period of eligibility begins on the child's 18th birthday, or on the successful completion of the child's secondary schooling, whichever first occurs, and ends on the child's 26th birthday. 38 C.F.R. § 21.3040(b). However, if the veteran's death occurs after the child's 18th birthday but before the child's 26th birthday, the child may elect the beginning date of his or her period of eligibility. 38 C.F.R. § 21.3040(b)(2). The period of eligibility ends 8 years after the beginning date the child elects and VA may extend the period of eligibility for one of the reasons shown in 38 C.F.R. § 21.3040(g) or (h). Id. In the instant case, the appellant was born in September 1986. She was thus 24 years old at the time of the Veteran's death in April 2011, as well as at the time of the August 2011 rating decision granting service connection for the cause of the Veteran's death and establishing basic eligibility for DEA benefits. In September 2017, the appellant applied for DEA benefits. In December 2017, the AOJ issued a "Certificate of Eligibility" in which the appellant was informed that she has been approved for DEA benefits and that she had 45 months of full time benefits remaining. The appellant was also informed that she could choose either April 27, 2011, or August 31, 2011, or any date in between, as the beginning date for entitlement to benefits. The appellant ultimately elected August 31, 2011, as her beginning date. She was thereafter informed that she had until August 31, 2019, to use her benefits. In this regard, the Board notes that, generally, no person is eligible for Chapter 35 educational assistance benefits beyond his or her 31st birthday. See 38 C.F.R. § 21.3040. However, 38 C.F.R. § 21.3041(b)(2) seemingly allows for an end date for receipt of DEA benefits that is past an 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, 38 C.F.R. § 21.3041(b)(2) allows for an eligibility period of eight years so long as the Veteran's death occurs after the child's 18th birthday but before the child's 26th birthday. As the appellant was 24 when the Veteran died, her eligibility period permissibly extends beyond her 31st birthday. See 38 C.F.R. § 21.3041(b)(2). Regarding whether the appellant's end date for receipt of DEA benefits can be extended beyond August 31, 2019, a review of the record shows that during the fall semester of 2019, the appellant was enrolled in an undergraduate program of education at the University of Central Oklahoma. Specifically, she was enrolled for 12 credit hours for the period from August 19 through December 13, 2019, and for three credit hours for the period from October 10 through December 13, 2019. Pursuant to 38 C.F.R. § 21.2041(g)(2), 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. 38 C.F.R. § 21.3041(g)(2). Extensions under this provision may be made beyond age 31. Id. Here, an enrollment certification received from the University of Central Oklahoma shows that the appellant's program of education for the fall semester, 2019, began on August 19, 2019, and was to end on December 13, 2019. Thus, the appellant's delimiting date of August 31, 2019, occurred while she was "enrolled" in an educational institution that regularly operates on the semester system. As such, she is entitled to an extension of her delimiting date to the end of the semester. 38 C.F.R. § 21.3041(g)(2). Accordingly, an extension of the delimiting date to December 13, 2019 (the end date for the semester), but no later, is warranted in this case. Id. The Board understands that the appellant is seeking to use her remaining DEA benefits, which, as of August 31, 2019, was 29 months and 2 days. However, the law does not provide for an extension of the delimiting date beyond that which has been granted herein. In so finding, the Board has considered that end date extensions 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). Here, it is not contended or otherwise shown that an education program was been suspended due to conditions determined to be beyond the appellant's control. The Board also notes that the law allows for 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). There is no indication that the appellant was ordered to active duty or involuntarily ordered to full-time National Guard duty during her period of eligibility such that any further extension of her delimiting date would be warranted under 38 C.F.R. § 21.3041. Accordingly, given the evidence noted above, and resolving all reasonable doubt in the appellant's favor, the Board concludes that an extension of the appellant's delimiting date for DEA benefits to December 13, 2019, but no later, is warranted. See 38 C.F.R. § 21.3041(g)(2); see also 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Neilson, 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.