Citation Nr: A25025317 Decision Date: 03/19/25 Archive Date: 03/19/25 DOCKET NO. 210301-226769 DATE: March 19, 2025 ORDER Entitlement to payment of Dependents Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code, at the full-time rate during the period from November 2, 2020 to December 23, 2020, is denied. FINDING OF FACT During the period from November 2, 2020 to December 23, 2020, the appellant was enrolled at Herzing University for only 3 credit hours, which corresponds to half time. CONCLUSION OF LAW The criteria for payment of DEA benefits at the half-time rate during the period from November 2, 2020 to December 23, 2020, have not been met. 38 U.S.C. § 3532; 38 C.F.R. §§ 21.3131, 21.4270. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty on the U.S. Navy from October 1996 to January 2012. The appellant in this appeal is the Veteran's spouse. This appeal to the Board of Veterans' Appeals (Board) arose from a December 2020 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that, due to a reduction in credit hours, the appellant was entitled to DEA benefits at only the half-time rate, effective November 2, 2020. The appellant disagreed with this decision and subsequently perfected an appeal to the Board. In the March 1, 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the December 2020 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the appellant with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. If the appellant would like VA to consider any evidence that was submitted that the Board could not consider, the appellant may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. The appellant submitted evidence on March 1, 2021 regarding her appeal of dismissal from Herzing University, and the university's response approving her to continue education with Herzing University. 1. Entitlement to payment of Dependents Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code, at the full-time rate during the period from November 2, 2020 to December 23, 2020, is denied. The appellant submitted a VA Form 10182 in March 2021 appealing a December 2020 decision by the AOJ. The appellant specified that she had a "lack of internet for online schooling." Along with the VA Form 10182, she submitted a copy of her appeal of her dismissal from Herzing University, requesting that she be allowed to continue her studies. She stated she had a difficult semester as she and her "boyfriend" had moved from Florida to Virginia shortly after the semester began. Her schoolwork was interrupted by "the packing and general things that needed to be taken care of" so she withdrew from College Algebra, which she found to be a difficult class. Once she moved, she struggled to get internet set up at her new house and stated that she could not work at the local library due to Covid restrictions. She also argued she did not have enough data with her cell phone to connect her laptop to it, and she was unable to find another location with free Wi-Fi. Eventually, she ordered a home router so she could have reputable internet from her home. She requested a second chance to improve her GPA and continue her studies. See March 1, 2021 Correspondence, 1. Additionally, the appellant submitted a January 15, 2021 email from Herzing University addressing her application to the Satisfactory Academic Progress Appeal Committee. The committee approved her request to continue her education. She was placed on an Academic Success Plan which required that she enroll in a specific number of credits, meet minimum standards, and participate in tutoring assistance. See March 1, 2021, Third Party Correspondence. Basic eligibility for Chapter 35 benefits can be established in several ways, including being the spouse 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)(D)(i); 38 C.F.R. § 21.3021 (a)(3)(i). In this case, the appellant's basic eligibility for DEA benefits as the Veteran's spouse is not in dispute, as she has been found eligible for these benefits. Rather, the dispute in this case is the rate of payment for DEA benefits during the school term running from November 2, 2020 to December 23, 2020. Regarding DEA benefits, the Board notes that the DEA program offers education and training to qualified dependents of certain veterans, most generally, veterans who are permanently and totally disabled as a result of, or die of, a service-connected disability. DEA benefits include money for tuition, money for housing, money for books and supplies. The amount VA pays is based on the type of training program. It is also based on whether the individual receiving DEA benefits attends training part-time of full-time. Benefits are paid monthly and in arrears, or at the end of the course of study. If attendance is less than a month or less than full-time, payments will be reduced. Here, the record shows that the appellant enrolled in an undergraduate program of study at Herzing University beginning in May 2020. Specific to the claim on appeal, an "Enrollment Certification" signed on August 25, 2020, shows that the appellant was initially enrolled for 9 credit hours for the period from November 2, 2020 to December 23, 2020. See January 25, 2022 Education Appeal file, 116. A September 4, 2020 "Chapter 35 Education Award" showed that the appellant was approved for $1,248.00 for 9 credit hours for the period from November 2, 2020 to December 24, 2020. See id., 117. On October 7, 2020, the school certifying official signed a "Notice of Change in Student Status" wherein it was reported that for the term running from November 2, 2020 to December 23, 2020, the appellant had reduced her credit hours from 9 to 6 prior to the first day of the term, "preregistered but reduced prior to first day...effective November 1, 2020." See id., 118. An October 15, 2020 "Chapter 35 Education Award" noted that the appellant was approved for $1,248.00 for 6 credit hours for the period from November 2, 2020 to December 24, 2020. On December 7, 2020, the school certifying official signed a "Notice of Change in Student Status" wherein it was reported that for the term running from November 2, 2020 to December 23, 2020, the appellant had her credit hours reduced from 9 to 3 due to a "reduction after drop period-non-punitive grade...effective November 22, 2020." See id., 126. A December 15, 2020 "Chapter 35 Education Award" noted that the appellant's 3 credit hours for the period from November 2, 2020 to December 24, 2020, warranted a rate of $734.00. In the December 15, 2020 decision on appeal, the AOJ sent a letter to the appellant informing her that based on the change in her enrollment during the term that began on November 1, 2020, her payments were reduced to $734.00 per month. The letter also informed her that Herzing University had reported her credit hours were reduced from 9 to 3 hours on November 22, 2020, and that there was no evidence to show that this change was due to reasons that were beyond her control. See id., 128. Based on the appellant's reduction of credit hours from 9 to 3 for the term running from November 2, 2020 to December 23, 2020, the appellant's monthly rate of DEA benefits was reduced. The reduction was based on the appellant's reduced rate of pursuit, from full-time enrollment to half-time enrollment. See id., 131. Except as provided in 38 C.F.R. § 21.3132, pertaining to reductions in DEA benefits, the monthly rate of basic educational assistance allowance payable to an eligible person will be the applicable rate provided in 38 U.S.C. §§ 3532, 3686, or 3687, as increased each fiscal year in accordance with 38 U.S.C.§§ 3564 and 3687(d). 38 C.F.R. § 21.3131 (a)(2). Further, the rate of pursuit will be determined in accordance with 38 C.F.R. § 21.4270. Id. In accordance with 38 C.F.R. § 21.4270 (c), and as pertinent to the facts of this case, "[w]hen the institution certifies that all undergraduate students enrolled for a minimum of 12 or 13 semester hours or the equivalent are charged full-time tuition, or considered full time for other administrative purposes, such minimum hours will establish the criteria for full-time measurement "[w]hen 12 hours is properly certified as full time, VA will measure 9 through 11 hours as 3/4 time, 6 through 8 hours as 1/2 time, 4 through 5 hours as less than 1/2 time and more than 1/4 time, and 1 through 3 hours as 1/4 time or less." 38 C.F.R. § 21.4270 (c), note (2). The Board notes that Herzing University charges a flat rate of tuition for 12 or more credits, making full-time 12 hours. See January 25, 2022 Education Appeal, 118. A February 18, 2021 "Education Master Record Status" regarding the appellant's Chapter 35 benefits lists the 3 credit hours as "1/2" training time for the period from November 2, 2020 to December 24, 2020. See id., 131. The law provides that education benefits under Chapter 35 are paid only for the period of a student's enrollment in pursuit of an educational program. Thus, no amount is paid to the student for a course for which the grade assigned is not used in computing the requirements for graduation, to include for a course from which (s)he elects to withdraw, unless the student withdraws because (s)he was called to active duty or because the Secretary finds that there were mitigating circumstances for the withdrawal. 38 U.S.C. § 3680 (a); 38 C.F.R. § 21.3132 (d). Therefore, if there are no mitigating circumstances, the educational allowance is reduced or terminated as of the first day of the term in which the withdrawal occurs. 38 C.F.R. §§ 21.3135 (c), 21.4135(e)(1). A reduction takes place in the event there are other courses that the student continues taking during the period at issue (which, typically, is but does not have to be a semester), while a termination takes place if there is no other course taken during this period. If a student is claiming that there are mitigating circumstances for his/her election to withdraw or for his/her non-punitive grade, (s)he must generally submit a description of these circumstances in writing to VA within one year from the date VA notifies the student that (s)he must submit his/her explanation of the mitigating circumstances. The student must also submit evidence supporting the existence of mitigating circumstances within one year of the date VA's request for such evidence. 38 C.F.R. § 21.3132 (d)(1). The following circumstances are examples of those that VA considers to be mitigating: an illness of the student, an illness or death in the student's family, an unavoidable geographical transfer resulting from the student's employment, an unavoidable change in the student's conditions of employment, immediate family or financial obligations beyond the control of the student that require him/her to suspend pursuit of the program of education to obtain employment, discontinuance of a course by the student's educational institution, unanticipated active duty for training, and unanticipated difficulties in caring for the student's child or children. 38 C.F.R. § 21.3132 (d)(2). Notably, in the first instance of a withdrawal after May 31, 1989, from a course(s) for which the student receives Chapter 35 education benefits, VA will consider that mitigating circumstances exist as to course(s) totaling not more than six credit hours or the equivalent. Students to whom this provision applies are not subject to the reporting requirement found in 38 C.F.R. § 21.3132 (d)(1). Here, the appellant received a letter from the AOJ on October 15, 2020 wherein she was informed that her payments for DEA benefits would be reduced to $724.00 on October 1, 2020 because she had withdrawn from 3 credit hours on September 28, 2020. As this was her first withdrawal, the AOJ excused the withdrawal without asking for an explanation as to why she withdrew. She was informed that the excuse only applied to this first withdrawal and provided information about future course withdrawals. Id., 121. The effective date of reduction or discontinuance of education benefits for courses discontinued, not satisfactorily completed, or withdrawn from are calculated in various ways. As applicable here, if a student receives all non-punitive grades, or withdraws from all courses for a reason other than because of being ordered to active duty, and no mitigating circumstances are found, his/her education benefits are terminated or reduced effective the first date of the term in which the withdrawal occurs. 38 C.F.R. § 21.4135 (e). The Board acknowledges the appellant's argument that she had a mitigating factor of the inability to obtain internet as the cause of her reduction in credits for the period from November 2, 2020 to December 23, 2020. However, her statements also noted that her packing, moving, difficulty with math, lack of phone data, and inability to locate a place with free Wi-Fi also contributed to her reduction in credit hours. Her statement did not indicate that she had to move due to employment, only that she and her "boyfriend" had bought a house in Virginia. The Board finds that her description of the move does not rise to a level similar to unavoidable geographical transfer. The Board does not find that mitigating circumstances existed for her withdrawal and non-punitive grade for the period from November 2, 2020 to December 23, 2020. When the term ended, the appellant was no longer taking the credit hours necessary to be considered a full-time student for purposes of entitlement to DEA benefits at the full-time rate. Accordingly, as the appellant was taking only 3 credits as of November 2, 2020, she was entitled to monthly DEA benefits payable only at the half (1/2) time rate. (Continued on the next page) For the foregoing reasons, entitlement to payment of DEA benefits at the full-time rate during the period from November 2, 2020 to December 23, 2020, is not warranted as a matter of law. Accordingly, the claim on appeal must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); 38 C.F.R. §§ 21.3131, 21.4270. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.H. Stubbs 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.