Citation Nr: A25035124 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 220813-404913 DATE: April 16, 2025 ORDER Entitlement to an extension of educational assistance benefits for the appellant under Chapter 35, Title 38, United States Code (Dependents' Educational Assistance (DEA)) beyond April 10, 2022, is denied. FINDINGS OF FACT 1. Basic eligibility for educational assistance benefits under Chapter 35 (DEA) was established effective July 18, 2012. 2. The appellant was born in April 1996; he turned 18 years of age in April 2014. 3. The weight of the available evidence is persuasively against finding there were any period(s) where the appellant suspended an education program due to conditions beyond his control prior to April 10, 2022. 4. The available evidence does not reflect that the appellant was enrolled in and pursuing an education program on April 10, 2022; nor does the evidence reflect that he was ordered to active duty or involuntarily ordered to full-time National Guard duty during his period of eligibility. CONCLUSION OF LAW The criteria for an extension of educational assistance benefits for the appellant under Chapter 35 (DEA) beyond April 10, 2022, have not been met. 38 U.S.C. §§ 3500, 3512; 38 C.F.R. §§ 21.3040, 21.3041, 21.3043. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had service in the Army National Guard from February 1992 to September 1997, to include a period of active duty for training from March 1992 to August 1992. The appellant is his son. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2022 decision issued by the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma. The appellant timely appealed to the Board by filing a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement)) later that month, requesting direct review of the evidence considered by the agency of original jurisdiction (AOJ). 38 C.F.R. §§ 20.201, 20.202(b)(1). Under the direct review option, the Board may only consider the evidence of record at the time of the August 2022 AOJ decision on appeal. 38 C.F.R. § 20.301. The Board cannot consider evidence submitted after that decision was promulgated. In this regard, the Board notes that the appellant submitted evidence in the form of new factual assertions in conjunction with his August 2022 VA Form 10182. Because he selected the direct review option but also submitted evidence, the Board sent a letter to the appellant in February 2025 explaining the steps he needed to take if he wanted to have the additional evidence considered in conjunction with his appeal. See Edwards v. McDonough, 36 Vet. App. 56 (2023) (when an appellant selects the direct review docket, but nevertheless submits evidence with the VA Form 10182, the notice of disagreement is unclear, and the Board should seek clarification). As the appellant has not responded to the February 2025 letter, the Board will proceed to consider his appeal on the basis of direct review. If the appellant would like VA to consider any evidence that was added to the claims file that the Board could not consider, he may file a Supplemental Claim (VA Form 20-0995) and submit or identify that evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Entitlement to an extension of educational assistance benefits for the appellant under Chapter 35 (DEA) beyond April 10, 2022 Basic eligibility for Chapter 35 (DEA) benefits for the child or surviving spouse of a veteran may be established if: (1) the veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran's death; or (4) the veteran died as a result of a service-connected disability. 38 U.S.C. §§ 3500, 3501, 3510; 38 C.F.R. § 3.807. Here, basic eligibility for Chapter 35 benefits was established from July 18, 2012, the effective date of the Veteran's award of a total disability rating based on individual unemployability due to service-connected disability (TDIU). See June 2013 rating decision. That is to say, basic eligibility was established from that date based on a finding that the Veteran was permanently and totally disabled. There is no dispute that the appellant is the child of the Veteran and that he has basic eligibility for Chapter 35 (DEA) benefits. The issue on appeal is whether he is entitled to such benefits beyond April 10, 2022. The eligibility period for Chapter 35 (DEA) benefits generally begins on the eligible person's 18th birthday, or on the successful completion of the child's secondary schooling, whichever occurs first, and ends on the person's 26th birthday. See 38 U.S.C. § 3512(a); 38 C.F.R. §§ 21.3040(a), 21.3041(a). An exception to the general rule pertaining to the beginning date provides, in part, that if the effective date of the veteran's permanent and total rating is after the eligible person's 18th birthday, but before their 26th birthday, then the period of eligibility shall end eight years after the date that is elected by that person to be the beginning date of entitlement under 38 U.S.C. § 3511. See 38 U.S.C. § 3512(a)(3); 38 C.F.R. § 21.3041(a)(2)(ii). In this case, however, the appellant was born in April 1996. As such, he turned 18 years of age in April 2014, after the effective date of the Veteran's TDIU award and the June 2013 notification of that award. Therefore, this exception does not apply. In certain other 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 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). The burden of proof is on the eligible person to establish that suspension of a program was due to conditions beyond his or her control. 38 C.F.R. § 21.3043. The period of suspension shall be considered to have ended as of the date of the person's first available opportunity to resume training after the condition which caused it ceased to exist. Id. VA may consider the following circumstances as beyond the eligible person's control: (a) While in active pursuit of a program of education, he or 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 his or her program of studies; (b) Immediate family or financial obligations beyond his or her control require the eligible person to take employment, or otherwise preclude pursuit of his or her program; (c) Unavoidable conditions arising in connection with the eligible person's employment which preclude pursuit of his or her program; (d) Pursuit of his or her program is precluded because of the eligible person's own illness or illness or death in his or her immediate family; (e) Active duty, including active duty for training in the Armed Forces. 38 C.F.R. § 21.3043. In his August 2022 VA Form 10182, the appellant identified his area of disagreement in the present matter as: "Homelessness, Hospitalized, Covid." He did not provide any further details. The Board has liberally construed his VA Form 10182 as contending that he could not pursue and/or had to suspend his education program due to the identified factors. As noted, the appellant has the burden of proof to establish that suspension of a program was due to conditions beyond his control. Here, there is no supporting evidence in the record available for review that the factors identified, or any other factors beyond the appellant's control, prevented him from utilizing his Chapter 35 (DEA) benefits at any time during the period from April 2014 to April 2022. His general contentions on the VA Form 10182 are otherwise insufficient to satisfy his burden in that regard. In addition, because he did not identify or otherwise raise the issue of conditions beyond his control impacting his ability to pursue a program of education until after the August 2022 decision on appeal was issued, there was no pre-decisional error on the part of the AOJ in failing to address or undertake development on the matter. In light of the foregoing, the Board must find that the weight of the available evidence is persuasively against a finding that there were any period(s) where the appellant suspended an education program due to conditions beyond his control prior to April 10, 2022. Therefore, this exception does not apply. Another exception provides that 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: (1) 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 (2) 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. Here, the available evidence does not reflect that the appellant was enrolled in and pursuing an education program on April 10, 2022. In pertinent part, his July 2022 application for Chapter 35 (DEA) benefits identified a program that was to begin in August 2022, and he did not otherwise indicate that he was currently in an education program. The 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 or her period of eligibility. 38 C.F.R. § 21.3041(h). In this case, that exception is not applicable as the available evidence does not reflect that the appellant was a member of the military, to include the National Guard, during the period at issue. In fact, he reported on his July 2022 Chapter 35 (DEA) application that he had not served on active duty. The Board commends the appellant on his educational pursuits. However, applicable law only provides for a delimiting date of DEA benefits until his 26th birthday, or April 10, 2022, and he is not shown to have met the criteria for any exceptions that would permit an extension of his delimiting date beyond April 10, 2022. The appeal must be denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board John Kitlas, 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.