Dependent Benefits Beyond Age 23 (College Age)

[broncovet]

38 CFR 3.667 sounds like, once the Veteran is in college, the Veteran can continue to collect "college age" benefits until he graduates, and is not limited to age 23:

Specifically:

3.667 - School attendance.

(a) General. (1) Pension or compensation may be paid from a child's 18th birthday based upon school attendance if the child was at that time pursing a course of instruction at an approved educational institution and a claim for such benefits is filed within 1 year from the child's 18th birthday.

(2) Pension or compensation based upon a course of instruction at an approved educational institution which was begun after a child's 18th birthday may be paid from the commencement of the course if a claim is filed within 1 year from that date.

(3) An initial award of DIC (dependency and indemnity compensation) to a child in the child's own right is payable from the first day of the month in which the child attains age 18 if the child was pursuing a course of instruction at an approved educational institution on the child's 18th birthday, and if a claim for benefits is filed within 1 year from the child's 18th birthday. In the case of a child who attains age 18 after September 30, 1981, if the child was, immediately before attaining age 18, counted under 38 U.S.C. 1311(b) for the purpose of determining the amount of DIC payable to the surviving spouse, the effective date of an award of DIC to the child shall be the date the child attains age 18 if a claim for DIC is filed within 1 year from that date.

(Authority: 38 U.S.C. 5110(e))(4) An initial award of dependency and indemnity compensation to a child in its own right based upon a course of instruction at an approved educational institution which was begun after the child's 18th birthday may be paid from the first day of the month in which the course commenced if a claim is filed within 1 year from that date.

(Authority: 38 U.S.C. 5110(e))

(5) Where a child was receiving dependency and indemnity compensation in its own right prior to age 18, payments may be continued from the 18th birthday if the child was then attending an approved educational institution and evidence of such school attendance is received within 1 year from the 18th birthday. Where the child was receiving dependency and indemnity compensation in its own right prior to age 18 and was not attending an approved educational institution on the 18th birthday but commences attendance at an approved educational institution after the 18th birthday, payments may be resumed from the commencing date of the course if evidence of such school attendance is filed within 1 year from that date.

(b) Vacation periods. A child is considered to be in school during a vacation or other holiday period if he or she was attending an approved educational institution at the end of the preceding school term and resumes attendance, either in the same or a different approved educational institution, at the beginning of the next term. If an award has been made covering a vacation period, and the child fails to commence or resume school attendance, benefits will be terminated the date of last payment or the last day of the month preceding the date of failure to pursue the course, whichever is the earlier.

© Ending dates. Except as provided in paragraph (b) of this section, benefits may be authorized through the last day of the month in which a course was or will be completed.

(Authority: 38 U.S.C. 5112(b)(7))

(d) Transfers to other schools. When benefits have been authorized based upon school attendance and it is shown that during a part or all of that period the child was pursuing a different course in the same approved educational institution or a course in a different approved educational institution, payments previously made will not be disturbed.

[free_spirit_etc]

See what I mean about how you can read those child's benefits laws over and over and over, and still have trouble figuring out if you qualify or not. (Sigh...)

[free_spirit_etc]

Ah... at least this issue has some BVA decisions to look at.

I think the benefits end at 23.

http://www.va.gov/vetapp11/Files3/1120295.txt

In response to his February 1999 inquiry, the RO sent the Veteran a letter later in February 1999 informing him that he was "eligible for your dependent daughter through the age of 23 as long as she is attending school."

This one gets all into the commencement part. It looks like there are quite a few people who don't file within one year of the child starting school - and they lose benefits:

http://www.va.gov/vetapp12/Files5/1236810.txt

However, compensation based upon a course of instruction at an approved educational institution which was begun after a child's 18th birthday may be paid from the commencement of the course, if a claim is filed within one year from that date. 38 C.F.R. § 3.667(a)(1)-(2) (2011).

Based on that regulation, the effective date of the addition of V.L. to the Veteran's award may be up to one year prior to the date of claim since the enrollment form submitted by the Veteran shows that V.L. attended college courses at an approved educational institution for the entire one-year period prior to the receipt of the Veteran's March 9, 2009, claim.

That regulation specifically states that the effective date may only be from the commencement of the course in cases whether the claim is filed within one year from that date. Although the term "course" is not specifically defined, interpreting the regulation in the most favorable light to the claimant, it is reasonable to assume that the commencement of a course means the beginning of a semester, or the beginning of an individual class in any given semester. Based on that assumption, the Veteran would be entitled to an effective date at some point within the one year period prior to the date of claim during which V.L. began any semester. Therefore, in the Veteran's case, one year prior to the March 9, 2009, claim would be March 9, 2008. That date, according to the university enrollment form, unfortunately falls after commencement of the Spring semester 2008 commencement date of January 7, 2008. Because January 7, 2008, is outside the one-year time frame, that date cannot be legally assigned as the effective date. The next commencement date for a semester or course of study, according to the university enrollment form is August 25, 2008, the beginning of the Fall 2008 semester. August 25, 2008 falls within the one-year period prior to the March 9, 2009, date of claim, and it is documented as the beginning of the Fall 2008 semester. Thus, August 25, 2008 fits squarely within the regulatory framework as a legally assignable effective date for the addition of V.L. to the Veteran's award based on a dependent school age child attending college under age 23. The Board finds no basis to assign any earlier effective date.

To summarize, the Veteran's claim was filed within one year of the commencement of V.L.'s Fall Semester of 2008, which began on August 25, 2008. There is no earlier commencement date for a course of study or semester that falls within the one-year period prior to the date of the March 9, 2009, claim to add V.L. as a dependent to the Veteran's award. Therefore, August 25, 2008 is the earliest effective date assignable by law to add V.L. to the Veteran's award in accordance with 38 C.F.R. § 3.667(a)(2) (2011). 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

An effective date of August 25, 2008, but not earlier, is granted for the addition of V.L. to the Veteran's award.

[broncovet]

38 CFR 3.57 defines "child" this way:

....Who, after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an educational institution approved by the Department of Veterans Affairs. For the purposes of this section and § 3.667, the term “educational institution” means a permanent organization that offers courses of instruction to a group of students who meet its enrollment criteria, including schools, colleges, academies, seminaries, technical institutes, and universities.

I interpret this to mean that the child, who is between 18 and 23 goes to college, can get dependent benefits UNTIL COMPLETION OF EDUCATION. This is consistent with my son, who got dea (Ch. 35) benefits well beyond age 23 WHILE HE WAS IN SCHOOL.

[free_spirit_etc]

Oh... I was focusing on Who, after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years)

I think their regulations on childrens' benefits are not really clear.

The DEA (Chap 35) say they pay education benefits through the age of 26.

http://www.gibill.va.gov/benefits/other_programs/dea.html

Period Of Eligibility

If you are a son or daughter and wish to receive benefits for attending school or job training, you must be between the ages of 18 and 26. In certain instances, it is possible to begin before age 18 and to continue after age 26.

Edited September 10, 2013 by free_spirit_etc

[Stretch]

My daughter was 22 years 11 months and 2 weeks old when we applied for her school benefits. She was living at home and not working. She was awarded 45, maybe 48 months of benefits for school. She just turned 27 years old and using her benefits for some kind of nurse school.

Edited September 10, 2013 by Stretch

[free_spirit_etc]

I think we are discussing two different kinds of benefits. One is for education and the other is dependent benefits for a child.