Citation Nr: A25037101 Decision Date: 04/23/25 Archive Date: 04/23/25 DOCKET NO. 230731-368260 DATE: April 23, 2025 ORDER Entitlement to Dependents' Educational Assistance (DEA) benefits, under Chapter 35 of Title 38 of the United States Code (Chapter 35), is denied. FINDING OF FACT 1. A May 2023 rating decision granted entitlement to a total and permanent rating evaluation effective February 21, 2022; DEA benefits were established effective the same date. 2. At the time of the effective date of the Veteran's total and permanent rating, the Appellant was 26 years of age. CONCLUSION OF LAW The criteria for entitlement to DEA benefits under Chapter 35 are not met. 38 U.S.C. § 3501; 38 C.F.R. §§ 21.3021, 21.3040, 21.3041. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1992 to July 1993, January 1996 to April 2004, October 2012 to September 2013, December 2014 to December 2015, January 2019 to April 2019, and September 29, 2019, to September 30, 2019. The appellant is his daughter. The case is on appeal to the Board of Veterans' Appeals from a June 2023 Department of Veterans Affairs (VA) Regional Office (RO) decision that denied entitlement to DEA benefits. Entitlement to DEA benefits The appellant contends that entitlement to DEA benefits is warranted. The present appeal originates from the appellant's June 2023 claim for DEA benefits. In the application, the appellant confirmed her birthdate is in June 1995. In June 2023, the RO denied the appellant's claim for DEA benefits on the basis that the appellant did not meet the age requirements for basic eligibility. Specifically, the RO concluded that in order for the appellant to establish eligibility to DEA benefits, the effective date of the Veteran's award for a permanent and total disability must have been before her 26th birthday. The RO found that the effective date of the Veteran's permanent and total disability is February 21, 2022, at which time the appellant was already 26 years old. The appellant appealed this determination. 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 his status as the legally recognized child of a Veteran who has a total disability permanent in nature resulting from a service-connected disability. 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). 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). Generally, when eligibility to DEA benefits is derived as a result of a veteran's death, 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. VA cannot grant an extension beyond the eligible person's 31st birthday to those children whose period of eligibility ending date (as determined under paragraphs (a) through (f) of this section) is subject to an age limitation. See 38 C.F.R. § 21.3041(g)(1). VA regulation also provides for an extension of a delimiting date where there is a "suspension of program." See 38 C.F.R. § 21.3043. The term "suspend" is defined as "[t]o interrupt; postpone; defer." BLACK'S LAW DICTIONARY, 9TH ED. 1584 (2009). The language of 38 C.F.R. § 21.3043 speaks to a person "who suspends his [or her] program" and the "date the reason for suspension ceased to exist." 38 C.F.R. § 21.3043. In the context of the entire regulatory scheme, the eligible person must actually commence a pursuit of education before the provisions of 38 C.F.R. § 21.3043(a)-(e) apply. The following circumstances are considered beyond an eligible person's control as a reason for suspension of a program of education: (1) while in active pursuit of a program of education, the eligible child 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 form pursuit of his or her program of studies; (2) immediate family or financial obligations beyond his or her control requires the eligible person to take employment, or otherwise preclude pursuit of his or her program; (3) unavoidable conditions arising in connection with the eligible person's employment which preclude pursuit of his or her program; (4) 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; or active duty, including active duty for training in the Armed Forces. 38 C.F.R. § 21.3043. 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. The Board reviews all issues in the case, without deference to the RO's decision, and as if the case was being heard for the first time. The appellant was born in June 1995. At the time of the Veteran's effective date for a total and permanent award, February 21, 2022, she was 26 years old. Thus, she had already reached her 26th birthday before the Veteran's award for a total and permanent disability. Accordingly, as a matter of law, she is not eligible to receive DEA benefits. Sabonis v. Brown, 6 Vet. App. 426 (1994). The appellant requests an extension of eligibility for education benefits, stating that "her [f]ather fought so hard for" these benefits and that "[a]s he was gone fighting in Afghanistam, [she] was home during [her senior] year without him fighting just as hard." See July 2023 VA Form 10182. Further, she stated that her father was asked to stay in the Army reserves by his chain of command, which extended the time for filing for benefits. If he had not answered the call and continued to serve, she would have met the age requirements. The Board is sympathetic to the appellant's circumstances and to her position. And while there are circumstances when the age limit could be also extended. See, e.g., 38 C.F.R. § 21.3041. Unfortunately, none of those circumstances are applicable to the facts of this case. The Board is a servant of the law and bound by it and may not set aside the governing regulations even when they result in an outcome the Board finds unjust. The plain language of the regulation leaves little room for multiple interpretations and expressly provides that DEA benefits may not be granted to an otherwise eligible person when the child's 26th birthday occurred "on or before" the effective date of the veteran's award of total and permanent disability. The Veteran's award was effective February 2022, and at that time, the Appellant had already reached her 26th birthday. Therefore, entitlement is not permissible. 38 C.F.R. § 21.3040(c). And, so the claim must be denied, as a matter of law. Sabonis, 6 Vet. App. at 430. The Board regrets that it cannot render a favorable decision to the appellant in this matter. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Schmidt 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.