Citation Nr: 21023244 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-38 987 DATE: April 20, 2021 ORDER Entitlement to an extension of the delimiting date beyond April 28, 2013 for Dependents’ Educational Assistance (DEA) under 38 U.S.C. Chapter 35 is denied. FINDINGS OF FACT 1. The appellant received an extension of her DEA benefits to April 28, 2013 due to a suspension of a program of education due to conditions beyond her control. 2. The appellant turned 31 years old in April 2013. 3. The appellant was not enrolled in an educational institution before her eligibility ending date. CONCLUSION OF LAW The criteria for entitlement to an extension of the delimiting date beyond April 28, 2013 for DEA under 38 U.S.C. Chapter 35 have not been met. 38 U.S.C. §§ 3500, 3501, 3510, 3512; 38 C.F.R. §§ 21.3041, 21.3043. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from October 1966 to May 1969. The Veteran died in April 2018. The appellant is the Veteran’s child. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 decision by the Department of Veterans Affairs (VA) Regional Office (RO), which granted the appellant’s request for an extension of her delimiting date for DEA benefits to August 25, 2011. The appellant appealed for a further extension of her delimiting date. During the pendency of the appeal, in November 2013, the RO granted the appellant’s request for an extension of the delimiting date for DEA benefits until April 28, 2013. The appellant continued to seek a further extension of her delimiting date. Pursuant to the appellant's request, a hearing before a Veterans Law Judge was scheduled for June 2019. She did not appear and good cause for missing the hearing was not provided. The request is thus deemed withdrawn. 38 C.F.R. § 20.603(e). Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act, VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Regulations relating to notice and assistance, specific to education benefits, are found at 38 C.F.R. §§ 21.1031, 21.1032. The Board notes that the appellant has been notified of the reasons for the denial of her claim and has been afforded full opportunity to present evidence and argument with respect to the claim. The Board finds the duty to notify and assist has been met. Analysis 1. Entitlement to an extension of the delimiting date beyond April 28, 2013 for DEA under 38 U.S.C. Chapter 35 The appellant is seeking an extension of her eligibility to use DEA benefits beyond April 28, 2013. In statements submitted by the appellant and her mother, the appellant explained that she was unable to complete her training, because she had been caring for her disabled brother since 2005. In 2011, the appellant said that she became her brother’s co-conservator. In 2013, the appellant reported that her brother was in an assisted living facility, and she was his conservator. By that point, the appellant said she was now in a position to attend school. She had enrolled in school beginning in August 2013. She was now seeking an extension of her delimiting date to cover that period of enrollment and to complete her training. Basic eligibility for DEA benefits under Chapter 35 is established in one of several ways, including being a child of a veteran who had a permanent and total disability evaluation. 38 U.S.C. Chapter 35; 38 C.F.R. § 21.3021(a)(1). In this case, the appellant's eligibility for DEA benefits derives from her status as the legally-recognized child of a Veteran who has a total disability permanent in nature resulting from a service-connected disability. The basic beginning date of an eligible child's period of eligibility for DEA benefits is his or her 18th birthday, or successful completion of secondary schooling, whichever occurs first. 38 U.S.C. § 3512(a); 38 C.F.R. § 21.3041(a). This beginning date may be tolled (i.e., delayed) in certain situations, including when the veteran's permanent and total disability rating is assigned after the child reaches age 18, but before the child becomes 26 years of age. 38 C.F.R. § 21.3041(a)(2)(ii). In that case, the beginning date of eligibility will be the effective date of the permanent and total disability rating or the date of notification to the veteran of such rating, whichever is more advantageous to the child. Id. The basic ending date for DEA benefits is the eligible child's 26th birthday. 38 U.S.C. § 3512; 38 C.F.R. § 21.3041(a)(1). However, if the effective date of the permanent and total disability rating, or notification of the rating, occurs when the child is between the ages of 18 and 26, the ending date will be 8 years from such effective date or date of notification, whichever is more advantageous to the child. 38 U.S.C. § 3512; 38 C.F.R. § 21.3041(d)(1). 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). The provisions of 38 C.F.R. § 21.3041(g) set forth the three exceptions. First, the period of eligibility ending date may be extended 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. See 38 C.F.R. § 21.3041(g)(1). Second, if an eligible person's period of eligibility ending date occurs 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. See 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 period of eligibility. 38 C.F.R. § 21.3041(h). In this case, this exception is not applicable. A review of the available record shows that the appellant was born in April 1982. The appellant became eligible to receive DEA benefits based on the permanent and total service-connected disability rating that the Veteran had received. Her delimiting date, which was eight years after her beginning eligibility date of April 28, 2000, was initially April 28, 2008. In January 2013, the appellant filed an application for Dependents Education Benefits. A January 2013 decision denied her claim for DEA benefits and informed the appellant that she was no longer eligible to receive DEA benefits as her period of eligibility had expired on April 28, 2008. Subsequently, the appellant provided VA with evidence indicating that she had suspended her program of education due to conditions beyond her control. Based on that evidence, in an April 2013 decision, VA found that the appellant could not attend school due to her taking care of her disabled brother. VA determined that an extension of her delimiting date was warranted from January 1, 2005 to April 28, 2008, which was the date of her 26th birthday. Her new delimiting date was August 25, 2011. The appellant continued to seek a further extension of her delimiting date, because her extenuating circumstances, caring for her brother, kept her from attending school beyond August 2011. In a November 2013 Certificate of Eligibility, VA granted the appellant’s request for a delimiting date extension to April 28, 2013, the date of her 31st birthday. VA informed the appellant that she had 10 months and 27 days of full-time benefits remaining, but she was only able to use those benefits before April 28, 2013. The appellant asserts that that she was not able to enroll in school until August 2013. She is seeking a further extension to be able to complete her training until her program of education is finished. The record includes a June 2014 enrollment certification form (VA Form 22-1999) from Birthwise Midwifery School, which indicated that the appellant was enrolled in academic terms from July 1, 2013 to December 31, 2013, from January 1, 2014 to June 30, 2014, and from July 1, 2014 to December 31, 2014. The appellant does not contend, and the evidence does not show, that she was enrolled in an educational institution before the expiration of her benefits on April 28, 2013. As previously noted, the appellant had already received two extension of her original delimiting date to April 28, 2013 based on the exception under 38 C.F.R. § 21.3041(g)(1), because she had suspended her pursuit of her program of education due to conditions that VA determined were beyond her control. However, under this provision, VA cannot grant an extension beyond age 31 for an eligible person whose period of eligibility ending date is subject to an age limitation, as in the present case. Once the appellant turned 31 years old in April 2013, the provision under 38 C.F.R. § 21.3041(g)(2) provides the only exception to allow a delimiting date extension. That provision states that if an eligible child’s period of eligibility ending date occurs while the child is enrolled in an education institution, VA may extend the period of eligibility to the end of the quarter of semester, for a child enrolled in an educational institution that regularly operates on the quarter of semester system. 38 C.F.R. § 21.3041(g)(2)(i). Such as extension may be made beyond age 31. Id. In this case, the record shows that the appellant was not enrolled in an education institution until July 2013, which was after the appellant’s period of eligibility had ended on April 2013. 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 law is clear regarding the period of eligibility for DEA benefits and the circumstances upon which extensions can be granted. Notwithstanding the appellant’s assertions that she was not able to begin school before April 28, 2013, because she was still caring for her brother, the Board does not have the legal authority to grant her request for an extension beyond April 28, 2013. Therefore, the appellant’s request for an extension of the delimiting date beyond April 28, 2013 for DEA benefits must be denied. CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Journet Shaw, 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.