Citation Nr: 21020688 Decision Date: 04/07/21 Archive Date: 04/07/21 DOCKET NO. 18-30 552 DATE: April 7, 2021 ORDER Entitlement to an extension of the appellant’s delimiting date beyond July [REDACTED], 2017 for 908 days, for Survivors’ and Dependents’ Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35, is granted. FINDING OF FACT The appellant suspended pursuit of her education from May 19, 2013 to November 13, 2015 (908 days) due to conditions beyond her control. CONCLUSION OF LAW The criteria for an extension of the delimiting date beyond July [REDACTED], 2017, for the appellant’s DEA benefits are met. 38 U.S.C. §§ 3500, 3501, 3511, 3512; 38 C.F.R. §§ 21.3021, 21.3040, 21.3041, 21.3043. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1971 to December 1973. The appellant is the Veteran’s daughter. The Veteran died in June 2006. The appellant turned 18 years old in July 2009, and then 26 years old in July 2017. The appellant submitted a claim for DEA educational benefits in September 2016. In October 2016, VA issued her a certificate of eligibility for VA educational benefits. The document incorrectly informed her that she must use her benefits before July [REDACTED], 2019. The appellant was later informed that her ending date was actually July [REDACTED], 2017. This was because she became 26 years old on that date and DEA eligibility ends at age 26. The Veteran appealed the ending date, asserting that her DEA eligibility ending date should be extended until her 31st birthday, that is July [REDACTED], 2022. DEA benefits are provided pursuant to 38 U.S.C. Chapter 35 to certain qualifying dependents of certain classes of veterans. One such class of veterans is those who died due to a service-connected disability, and one such qualifying group of dependents consists of the children of such veterans. 38 U.S.C. § 3501(a)(1)(A); 38 C.F.R. § 21.3041(b). Generally, when eligibility to DEA benefits is derived as a result of a veteran’s death, 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 comes first. The period of eligibility ends on the child’s 26th birthday. 38 C.F.R. § 21.3041(b). Under 38 C.F.R. § 21.3041(g)(1), an extension of DEA benefits may be granted beyond that eight-year period if an eligible child suspends pursuit of her educational program due to conditions that VA determines were beyond the child’s control as enumerated at 38 C.F.R. § 21.3043. Under 38 C.F.R. § 21.3043, the following circumstances may be considered as beyond the eligible person’s control: (a) While in active pursuit of a program of education she is appointed by the responsible governing body of an established church, officially charged with the selection and designation of missionary representatives, in keeping with its traditional practice, to serve the church in an official missionary capacity and is thereby prevented from pursuit of her program of studies. (b) Immediate family or financial obligations beyond her control require the eligible person to take employment, or otherwise preclude pursuit of her program. (c) Unavoidable conditions arising in connection with the eligible person’s employment which preclude pursuit of her program. (d) Pursuit of her program is precluded because of the eligible person’s own illness or illness or death in her immediate family. (e) Active duty, including active duty for training in the Armed Forces. No person is eligible for educational assistance beyond her 31st birthday, except as provided under 38 C.F.R. § 21.3041(g)(2). The appellant contends that she had to suspend her schooling because VA took so long to determine that the Veteran’s death was service connected. She pointed out that a claim for service connection for the cause of the Veteran’s death had been pending since 2006, but that VA did not grant service connection for the cause of the Veteran’s death until October 2014. She noted that service connection for cause of death was not granted until eight years and three months after the initial filing. The appellant also pointed out that VA did not notify her of the October 2014 rating decision granting DEA until November 2015, causing her to lose over a year of her DEA eligibility. The Board notes that the appellant’s contentions are verified by the record. It is demonstrated that VA did not inform the appellant, or the surviving spouse, of the award of service connection for cause of death, and the associated award of DEA benefits, for more than a year. In a case such as this the Board must make every effort possible to extend the appellant the benefit of the doubt. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). If VA had granted service connection for the cause of the Veteran’s death in a timely manner the appellant would have been eligible for DEA benefits from her 18th birthday and continuing until she reached the age of 26. In this case the unexplained delays on the part of VA resulted in the appellant not being entitled to DEA benefits until she was 23 years old, and resulted in her being uniformed of her eligibility to DEA benefits until she was 24. As explained below, the Board has determined that the appellant is entitled to an extension of her DEA delimiting date based on 38 C.F.R. § 21.3043(b). (Continued on the next page)   The appellant attended the University of Maryland until May 19, 2013. As of that date she had to suspend her education due to financial obligations beyond her control which precluded her from pursuing her program. As noted above, the appellant was unable to use DEA benefits due to delays on the part of VA. Consequently, the Board finds that the appellant is entitled to an extension of her DEA benefits for the period from May 19, 2013 until the November 13, 2015 notice from VA that she was entitled to DEA benefits. The Board acknowledges that the appellant is seeking the extension of her DEA benefits until age 31. The Board recognizes that an extension to age 31 would more fully restore the DEA benefits that she would have received if VA had been timelier in adjudicating the surviving spouse’s cause of death claim. However, the VA law and regulations do not provide such recourse. Accordingly, the Board finds that the appellant is only entitled to an extension of DEA benefits for the period of time that elapsed from May 19, 2013 to November 13, 2015. 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.