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Updated Nov 16, 2022

In This Section

  
This section contains the topic, “Rating Determination for DEA Under 38 U.S.C. Chapter 35.”

 

1.  Rating Determination for DEA Under 38 U.S.C. Chapter 35

Introduction

  
This topic contains information on the rating determination for DEA under 38 U.S.C. Chapter 35, including

Change Date

  
November 16, 2022

XIII.i.1.A.1.a.  Definition: DEA

  
The 38 U.S.C. Chapter 35 program called, Dependents’ Educational Assistance (DEA), is education or special restorative training for eligible dependents or survivors of certain Veterans and service members.
 
Reference:  For more information on DEA, see 38 CFR Part 21, Subpart C.

XIII.i.1.A.1.b.  Who May Be Eligible for DEA

  
DEA may be awarded to a Veteran’s (or service member’s)
  • child
  • spouse, or
  • surviving spouse.
Reference:  For more information on who is eligible for DEA, see M21-1, Part XIII, Subpart i, 1.B.1.a.

XIII.i.1.A.1.c.   Veteran Eligibility for DEA Purposes

  
For there to be basic eligibility to DEA based on the service of a Veteran, there must be either
  • an other than dishonorable discharge, or
  • death in service.
In addition there must be any of the following:
  • permanent and total (P&T) service-connected (SC) disability
  • P&T SC disability on the date of the Veteran’s death, or
  • death resulting from an SC disability.
Note:  Disability or death under 38 U.S.C. 1151 does not establish eligibility.
 
Reference:  For more information on P&T evaluations, see M21-1, Part V, Subpart ii, 3.D.4.

XIII.i.1.A.1.d.  Survivor Eligibility for DEA Purposes Under 38 U.S.C. 1318

  
When Dependency and Indemnity Compensation (DIC) is awarded to a surviving spouse or child under 38 U.S.C. 1318, presume permanence of disability, unless the Veterans Benefits Administration has specific evidence to the contrary, and award entitlement to DEA.
 
Do not develop for service connection (SC) of the cause of death in these cases.

XIII.i.1.A.1.e.  Service Member Eligibility for DEA Purposes

  
For there to be basic eligibility to DEA based on the service of an active duty member of the Armed Forces, there must be either of the qualifying factors listed below:
  • the service member
    • has been determined by the Department of Veterans Affairs (VA) to have a total disability permanent in nature incurred or aggravated in the line of duty (LOD) during active military, naval, air, or space service
    • is hospitalized or receiving outpatient medical care, services, or treatment for such disability
    • is likely to be discharged or released from such service for such disability, and
    • the pursuit of a course of education for which benefits under 38 U.S.C. Chapter 35 are sought by the individual’s spouse or child occurred after December 22, 2006, or
  • the service member currently has one of the following statuses for a period of more than 90 days:
    • missing in action
    • captured in the LOD by a hostile force, or
    • forcibly detained or interned in the LOD by a foreign government or power.

XIII.i.1.A.1.f.  Total Ratings and DEA

  
Entitlement to DEA requires that a total disability evaluation must also be established as permanent.
Reference:  For more information on P&T evaluations, see M21-1, Part V, Subpart ii, 3.D.4.

XIII.i.1.A.1.g.  Responsibility for Decision Making Related to DEA

  
The DEA program is administered by Education Service which makes the ultimate determination on entitlement and payment of benefits.
 
The regional office (RO) completes the initial rating decision, as defined by 38 CFR 21.302(q), establishing the basic eligibility factors such as SC for the cause of death or an SC P&T disability.
 
The RO does not actually determine the effective date of the DEA benefit.  It makes a determination on the date of commencement of a P&T disability.  38 CFR 21.3021(r) defines effective date of the P&T rating as the date from which VA considers that P&T disability commenced for the purpose of VA benefits as determined in the initial rating decision.

XIII.i.1.A.1.h.  When DEA Is a Rating Issue

  
Basic eligibility to DEA is a rating issue if
  • there is a claim for DEA or Chapter 35 benefits
  • a beneficiary requests a determination on P&T disability
  • an SC total disability (schedular or total disability due to individual unemployability (IU) is awarded or confirmed/continued and permanency is also established (to include the determination that a future examination is not warranted)
  • a previously-set future exam control is canceled/discontinued while there is total disability
  • SC for the cause of death is awarded, or
  • in connection with a claim for death benefits (not to include burial benefits), the Veteran was rated 100-percent disabled due to SC disabilities or entitled to IU on the date of death.
Exceptions:
  • Do not consider basic eligibility to DEA when that matter has been previously established, but do ensure eligibility is properly reflected in all systems.  However, when evaluating a claim for survivors benefit(s), include DEA as an issue in the rating decision even though DEA was awarded on another basis during the Veteran’s lifetime.
  • When an SC total disability is awarded or confirmed and continued you must consider whether there is basic entitlement to DEA.  However if permanency of disability is not proven, do not create a separate issue and make a decision that there is no basic eligibility.  To show consideration, discuss in the evaluation issue that permanency of disability was not established or that improvement was indicated.
  • Do not consider basic eligibility to DEA when the qualifying disability is awarded P&T under 38 U.S.C. 1151.
Notes:
  • Not assigning a future examination control on a total disability, or canceling a future examination when there is total disability, implies that improvement is not indicated and that the disability is static.
  • A rating decision must be prepared whenever permanency of a disability is established, whether the permanency is based on new evidence and/or on cancellation of a future examination regardless of whether or not there appear to be any potentially eligible dependents.
  • The Veterans Benefits Management System – Rating (VBMS-R) automatically establishes the ancillary issue of DEA/Chapter 35 entitlement when there is a combined evaluation of 100 percent and no future examination identified.
Reference:  For more information on the automatic establishment of the ancillary issue of DEA/Chapter 35 in VBMS-R, see the VBMS Rating User Guide.