Citation Nr: 21076157 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 16-58 772 DATE: December 22, 2021 ORDER The claim of entitlement to an extension of the delimiting date beyond February [REDACTED], 2016, for Dependents Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code, is denied. FINDINGS OF FACT 1. The appellant's eligibility for DEA benefits expired on February [REDACTED], 2016; a request for extension of eligibility was received in May 2016. 2. The evidence fails to demonstrate that prior to expiration of her period of eligibility, the appellant suspended a program of education for which she was receiving DEA benefits due to conditions beyond her control; the record does not support an end date extension on any other basis. CONCLUSION OF LAW The criteria for an extension of the delimiting date for receipt of DEA benefits beyond February [REDACTED], 2016, are not 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 Marine Corp from June 1979 to June 1982. The appellant in this case is the Veteran's biological child. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2016 determination by the Department of Veterans Affairs (VA) Regional Office (RO) informing the appellant that although she had been found eligible to receive DEA benefits, she could only use those benefits for training prior to February [REDACTED], 2016. The appellant disagreed with that decision and requested an extension of delimiting date. In October 2016, the agency of original jurisdiction (AOJ) issued a statement of the case in which it determined that February [REDACTED], 2016, was the Veteran's delimiting date for receipt of DEA benefits and that her delimiting date could not be extended. The Veteran thereafter perfected an appeal to the Board. The Board notes that on her VA Form 9, the appellant requested a Board hearing before a Veterans Law Judge; such hearing was scheduled for November 5, 2021, notice of which was sent to the appellant on September 30, 2021. The appellant, however, failed to report for her scheduled hearing. As good cause was not shown for why the appellant failed to report for the hearing and she has not otherwise requested that the hearing be rescheduled, the Board will proceed as though the hearing request has been withdrawn. Also in her VA Form 9, the appellant noted that she had been enrolled in school in 2008 and 2009 requested payment or reimbursement for schooling completed prior to February 2016. In this regard, the Board notes that entitlement to retroactive payment of DEA benefits has not been adjudicated by the AOJ. As entitlement to retroactive payment of DEA benefits is an issue separate and distinct from that of entitlement to an extension of the delimiting date for receipt of DEA benefits, the Board does not have jurisdiction over it. The matter is thus referred to the AOJ for appropriate action, to include providing the appellant with any necessary claims forms. See 38 C.F.R. § 3.150 (a) (providing for furnishing of appropriate application form upon request for VA benefits); 38 C.F.R §§ 3.160 and 20.201 (requiring that claims and notices of disagreement be filed on standard forms). Delimiting Date Extension Basic eligibility for Chapter 35 benefits can be established in several ways, including being the child 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)(A)(ii); 38 C.F.R. § 3.807(a)(3)(i). In this case, the appellant's basic eligibility for DEA benefits as the Veteran's child 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. In general, eligibility for DEA benefits derived from a veteran with a permanent and total disability begins on the child's 18th birthday, or on the successful completion of the child's secondary schooling, whichever occurs first. See 38 U.S.C. § 3512(a); 38 C.F.R. § 21.3041(a). The period of eligibility generally ends on the child's 26th birthday. Id. In the instant case, the appellant was born in February 1990. She was thus 11 years old at the time of the April 2001 rating decision establishing basic eligibility for DEA benefits. Accordingly, her period of eligibility ran from February [REDACTED], 2008, the date upon which she turned 18, to February [REDACTED], 2016, the date that she turned 26. 38 U.S.C. § 3512(a); 38 C.F.R. § 21.3041(a). On January 27, 2016, the appellant applied for DEA benefits. In her application, the appellant reported that she had previously been enrolled in a nursing program at Instituto de Banca y Comercio from August 2008 through August 2010, and that she would be attending Ana G. Mendez University with an expected date of enrollment in May 2016. The AOJ then received an enrollment certification showing the appellant was enrolled at the Universidad del Turabo, which is part of Ana G. Mendez University, for the period from May 5 through June 18, 2016, and from June 19 through July 23, 2016. In response, the AOJ informed the appellant that she could not be approved for DEA benefits for schooling beginning in May 2016 because her entitlement to such benefits had expired on February [REDACTED], 2016. Thereafter, the appellant requested an extension of her delimiting date. 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. 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/her period of eligibility. 38 C.F.R. § 21.3041(h). In her VA Form 9, the appellant reported that she was enrolled in school prior to February [REDACTED], 2016, but that she was unaware of her eligibility for DEA benefits because she was estranged from her biological father. She stated that she had been enrolled Ana G. Mendez University from August 2008 to December 2009, at which point she had to stop her studies in order to assist her household due to financial difficulties. She then stated that she twice attempted to return to school and was eventually able to complete an associate's degree in nursing. The appellant went on to request that she be reimbursed for her previous studies and that her delimiting date be extended due to circumstances beyond her control. Here, the Board acknowledges the appellant's argument that she was unable to continue a degree program in 2009 due to financial obligations. Although suspension of a program of education due to family financial obligations would be considered beyond the eligible person's control, the appellant was not in receipt of DEA benefits at the time that she interrupted her schooling in December 2009. The Board finds that the statutory and regulatory scheme contemplates that an eligible person be in receipt of DEA benefits at the time that a program of education was suspended to be eligible for an end date extension based on circumstances beyond an eligible person's control. Indeed, although the regulation does not so explicitly state, that portion of the regulation that pertains to extensions of ending dates based on enrollment at the time that eligibility is terminated similarly does not specify that a person must be in receipt of DEA benefits at the time he/she is enrolled in a program of eduction. See 38 C.F.R. § 21.3041(g)(1), (2). However, it would be nonsensical to read the applicable regulation in any way other than requiring that the claimant be in receipt of DEA benefits at the time of the event triggering a possible end date extension. As such, the Board finds that because the appellant was not in receipt of DEA benefits at the time that she suspended her program of education in December 2009, there is no basis for granting an extension on this basis. Further, to the extent that the appellant is arguing that she was prevented from using her DEA benefits to initiate a program of education due to circumstances beyond her control, by its plain wording, 38 C.F.R. § 21.3041(g)(1) does not allow for an end-date exception where it is contended that circumstances beyond the eligible person's control caused a delay in beginning a program of education. The appellant has also offered no evidence to show that she was enrolled in an educational institution at the time her period of eligibility had ended, such that an extension until that the end of the quarter or semester or to the end of the course would be warranted. Further, even if there was evidence of such, there is no indication that the Veteran was in receipt of DEA benefits such that this exception would be applicable. Finally, the appellant was not ordered to active duty or involuntarily ordered to full-time National Guard duty during her period of eligibility. Accordingly, based on the above exceptions, there is no basis upon which to grant the appellant's request for an extension of her delimiting date. The Board has also considered the appellant's argument that because she was estranged from her biological father, she did not know she was eligible for DEA benefits, there was no legal obligation in this case to inform the appellant of her potential eligibility for DEA benefits. Indeed, while the provisions of 38 U.S.C. § 6303 (previously 38 U.S.C. § 7722) detail VA's duties with respect to distributing information to eligible veterans and eligible dependents regarding all benefits and services to which they may be entitled under laws administered by the Secretary, 38 U.S.C. § 3563 specifically addresses VA's notice requirements with respect to DEA benefits and requires only that the VA "shall notify the parent or guardian of each eligible person whose eligibility is based on the death or disability of a parent...." 38 U.S.C. § 3563; see Andrews v. Principi, 351 F.3d 1134, 1137-38 (Fed. Cir. 2003) (holding that the provisions of 38 U.S.C. § 7722(b) and (c), do not "create any enforceable rights for an applicant for benefits who did not receive assistance in presenting a claim"); see also Harvey v. Brown, 6 Vet. App. 416, 424 (1994) (holding that Chapter 30 benefits cannot be awarded on the basis of the VA's failure to provide a veteran with accurate information pertaining to eligibility). While this presupposes that the parent or guardian will then notify the eligible dependent of his/her potential eligibility for educational assistance benefits, there is no requirement in law that persons potentially eligible to receive DEA benefits be notified at that time that basic eligibility for such is established. Here, the appellant has no enforceable right to notification of her potential eligibility for DEA benefits; thus, it generally cannot be concluded that she is entitled to the any tolling or extension of the time period in which she had to file for DEA benefits to have her application considered as having been filed as of her eligibility date. The Board acknowledges the appellant's position in this case and regrets the circumstances of her not being aware of her eligibility for DEA benefits. However, the Board is bound by the statutes and regulations governing the payment of benefits. Thus, for the reasons discussed above, application of the law to the facts of this case does not provide for an extension of her delimiting date beyond February [REDACTED], 2016. Further, as to her argument that her delimiting date should be extended because she was unaware of her eligibility to receive DEA benefits at the time that her period of eligibility began, that argument is essentially one that is couched in equity. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503; see also Harvey, supra. 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.