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]

I am coming up with child's benefits stop at 23 (not the educational benefits, but the dependent allowance.)

http://www.va.gov/vetapp13/Files2/1313867.txt

"A child is defined as an unmarried person who is (i) under the age of 18 years; (ii) before the age of 18 years became permanently incapable of self support; or (iii) after attaining the age of 18 years and until completion of education or training (but not after attaining the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 U.S.C.A. § 101(4)(A); 38 C.F.R. § 3.57(a). The allowance is generally discontinued when a dependent child turns 18, or when the child turns 23 if he or she is enrolled in school. 38 C.F.R. §§ 3.503, 3.667."

[broncovet]

Yes, Free Spirit. I was denied benefits for a child, in school, when he turned 23. M21-1MR, Part III, Subpart iii, Chapter 6, Section B, says it this waY:

Effective Dates of Payment, Continued

b. Effective Date of Payment If a Child Was Attending School on His/Her Eighteenth Birthday

Entitlement to compensation or pension based on a child’s school attendance is effective on the date of the child’s eighteenth birthday if

• VA receives a claim for benefits based on school attendance within one year of the child’s eighteenth birthday, and

• the child was attending school on his/her eighteenth birthday, or

• turned 18 during a school break, and

• resumed school attendance at the end of the break.

If addition of a school child to a compensation or pension award results in an increased rate of payment, 38 CFR 3.31 prohibits payment of the higher rate prior to the first of the month following the child’s eighteenth birthday.

Under these circumstances,

• continue the prior rate of payment through the end of the month in which the child’s eighteenth birthday falls, and

• pay the increased rate effective the first day of the following month.

Note: Continue to include payments of compensation or pension based on school attendance in the award to the Veteran or surviving spouse having actual or constructive custody of the child, even though the child has reached the age of majority.

References: For more information on

• benefit entitlement during school breaks, see M21-1MR, Part III, Subpart iii, 6.A.4.d

• effective dates of payment for DIC awards, see M21-1MR, Part III, Subpart iii, 6.B.5.e, and

• benefit payments based on school attendance, see 38 CFR 3.667.

[free_spirit_etc]

bronchovet,

I am sorry. I have looked for some cases, but I think this would be a tough one to fight. I can see where the child can continue to get educational benefits. But it doesn't look like they get dependent benefits past the age of 23, unless they are incapable of self support prior to the age of 18.

http://search.uscourts.cavc.gov/isysquery/63fcb67b-35bb-44d8-b3c8-e045a46bd7d5/11/doc/

See 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.1000(d); see also
Burris v. Principi, 15 Vet.App. 348, 353 (2001) (concluding that 70-year-old appellant was ineligible for accruedbenefits since he did not satisfy statutory definition of "child" in 38 U.S.C. § 101(4)(A), which excludes anyone over age 23 unless they were "permanently incapable of self-support" before attaining age 18)

http://search.uscourts.cavc.gov/isysquery/63fcb67b-35bb-44d8-b3c8-e045a46bd7d5/18/doc/

An additional allowance for a spouse and children may be paid to veterans who are receiving compensation or pension payments. Surviving spouses are entitled to additional [dependency and indemnity compensation (]DIC[)] or death pension for the veteran's children. Payments for unmarried children can be continued until the child reaches 18, until age 23 if the child continues in an approved school, or indefinitely if the child becomes incapable of self-support prior to age 18.

I get all tripped up looking at the Regs on the child's issue too. They say something in one place that seems to conflict with something somewhere else. But I keep running into child's dependent benefits end at age 23 (though the DEA benefits can continue).

Edited September 11, 2013 by free_spirit_etc

[free_spirit_etc]

brocovet,

I am not trying to be difficult here. I have tried to find something to support your claim, but I am not finding anything to support it.

[harleyman]

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

You are dicussing two different kinds of benefits. We need to remember...dependent benefits are for Veterans who are 30% to 90% disabled, who have qualifying dependents,

1. minor child - is under 18 years old

2, school age child - 18 years old until 23 years old

You have dependent benefits until the child reaches 18 years old then...

You have dependents for school age benefits (if the qualifying child is attending an approved school) starting at 18 until 23 years old- if the child is a dependant and they are in the age range you get the benefit while they are in school. If they are in the age range and not in school there is no dependent benefit. Payments for the dependents in the above two categories have the money go to the Veteran in his monthly check.

Then on a separate note you have Chapter 35 benefits ( for P&T TDIU & 100% schedular) for dependents (usually the spouse has 10 years to use the Chapter 35 benefits,and the school age dependent has to 8 years to use the benefit from the age of 18 to 26 years old, there are exceptions such as Berta stated, a dependent who qualifies for this benefit enters the military or peace corps,etc., the benefits time limit is extended. The regulations state the reason the benefits would be extended.

The Chapter 35 benefits is based on semesters, and married adult children are eligible for the benefit. I believe the benefit is 45 semesters total and the monthly allotment payment is prorated each semester as as 1/4 time, 1/2 time, 3/4 time or full time student, based on how many credit hours are taken. The payment goes directly to the dependent, the Veteran does not see this money on his award, and the Veteran is not allowed to claim the student as a dependent if the child is receiving Chapter 35 benefitss. The monthly benefits is about $951.00 a month prorated.

Edited September 11, 2013 by harleyman

[broncovet]

I looked at the "new" CFR 38 3.667, and the age 23 max has been deleted, except for accrued benefits, as follows. It looks like the VA made a change in regs, and the dependent benefits do not end at 23, but instead end when the college age kid no longer goes to college. This is consistent with M21:

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.

(e) Accrued benefits only. When a claim for accrued benefits is filed by or on behalf of a veteran's child over 18 but under 23 years of age, who was pursuing a course of instruction at the time of the payee's death and payment of accrued benefits only is involved, evidence of school attendance need not be confirmed by the school. When the payee's death occurred during a school vacation period, the requirements will be considered to have been met if the child was carried on the school rolls on the last day of the regular school term immediately preceding the date of the payee's death.

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