Citation Nr: 21072166 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-34 418 DATE: December 2, 2021 ORDER Entitlement to an extension of the delimiting date for Dependents' Education Assistance (DEA) benefits under 38 U.S.C. Chapter 35 is denied. FINDINGS OF FACT 1. A June 2008 rating decision granted basic eligibility to DEA benefits effective October 2007. 2. The Appellant, who is the Veteran's son, turned 26 years old in March 2017. 3. The Appellant does not meet any of the legal criteria for an extension of the period of eligibility for DEA benefits. CONCLUSION OF LAW The criteria for an extension of the delimiting date for DEA benefits under 38 U.S.C. Chapter 35 have not been met. 38 U.S.C. §§ 3501, 3512; 38 C.F.R. §§ 3.807, 21.3021, 21.3040, 21.3041. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the Army from July 1980 to October 1980, and from September 1986 to September 2007. The Appellant is the Veteran's son. In the June 2017 Appeal to the Board of Veterans' Appeals, the Appellant requested a hearing at a local VA office. He was scheduled for a hearing in October 2021. However, he did not report for the proceeding. The Appellant has not requested that the hearing be rescheduled or provided good cause for not appearing. Therefore, his hearing requested is deemed withdrawn. Entitlement to an extension of the delimiting date for Dependents' Education Assistance (DEA) benefits under 38 U.S.C. Chapter 35 The Appellant seeks an extension of DEA benefits to attend college courses after his 26th birthday. The Appellant contends that he was unaware of his eligibility to Chapter 35 benefits until it was too late to use them. Basic eligibility for certification of Dependents' Educational Assistance exists if the veteran: 1) was discharged from service under conditions other than dishonorable, or died in service and 2) has a permanent total service-connected disability; or had a permanent total service connected disability at the date of death; or died as a result of a service-connected disability. In a June 2008 rating decision, the Veteran's basic eligibility for DEA benefits was established from October 1, 2007. 38 C.F.R. § 3.807(a)(4). Basic eligibility means that a dependent of the Veteran could receive an award of DEA benefits if he or she meets specific requirements, including a maximum age requirement. For purposes of Chapter 35, "child" means the son or daughter of a Veteran who meets the requirements of 38 C.F.R. § 3.57, except as to age and marital status. 38 C.F.R. §§ 3.807(d)(1), 21.3021(b). Under Chapter 35, a child's period of eligibility generally begins on the child's 18th birthday, or upon successful completion of the child's secondary schooling, whichever first occurs; the period of eligibility ends on the child's 26th birthday. 38 U.S.C. § 3512(a); 38 C.F.R. § 21.3041(b). The ending date can be extended if, among other things, the child suspends his or her program due to conditions determined by VA to have been beyond his or her control; for example, if immediate family obligations beyond his or her control require him or her to take employment, or pursuit of his or her program is precluded because of his or her own illness, or he or she is ordered to active military duty or involuntarily ordered to full-time National Guard duty. 38 U.S.C. § 3512; 38 C.F.R. §§ 20.3041(g), 21.3043. 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). In no event may educational assistance be provided after the period of entitlement has been exhausted. In this case, the evidence shows that the appellant was born in March 1991. In a December 2015 letter from VA, the Appellant was notified that he may only use benefits before March 2017. After the Appellant's 26th birthday, he is ineligible for Chapter 35 benefits as a matter of law. 38 U.S.C. § 3512; 38 C.F.R. § 20.3041(c). The Board acknowledges that there are exceptions to the age limit of 26 for DEA benefits. The Board has considered these exceptions, as noted in 38 C.F.R. § 21.3041; however, they are not pertinent to the Appellant. As indicated above, extensions of ending dates are applicable where the beneficiary child is already in receipt of Chapter 35 educational assistance benefits and is pursuing his or her education, but has had to stop because of certain events beyond his or her control, such as their own illness or being ordered to active duty or involuntarily ordered to full-time National Guard duty during his or her period of eligibility. Extensions do not apply in the present matter because the Veteran did not stop his education due to illness or other obligation. The Board sympathizes with the Appellant's contentions. However, the Board lacks legal authority to award benefits outside the scope of the law. In this case, the Appellant did not request DEA benefits until November 2015. The Appellant has requested an extension of this date because he was not previously aware of these benefits. Unfortunately, the exceptions to the delimiting date of the child's 26th birthday listed in 38 C.F.R. § 21.3041(g) do not include a provision for a child who was not aware of the availability of benefits. Therefore, the claim for an extension of the delimiting date for DEA benefits under 38 U.S.C. Chapter 35 must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Where the law, rather than the facts, is dispositive, the benefit of the doubt provisions as set forth in 38 U.S.C. § 5107(b) are not for application. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Casey, 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.