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M21-1, Part III, Subpart iii, Chapter 6, Section C – Department of Veterans Affairs (VA) Education Benefits Under 38 U.S.C. Chapter 35

Overview


In This Section

This section contains the following topics:
Topic
Topic Name
1
2
3

1.  Notifying Individuals of Their Eligibility for DEA


Introduction

This topic contains information on notifying individuals of their eligibility for DEA, including

Change Date

November 2, 2018

III.iii.6.C.1.a.  Who Is Eligible for DEA

Dependents’ Educational Assistance (DEA), under 38 U.S.C. Chapter 35, provides educational assistance to the children, spouses, and surviving spouses of individuals who
  • died in service in the line of duty
  • were on active duty as members of the Armed Forces and have been listed by the appropriate Secretary for more than 90 days as
    • missing in action
    • captured in the line of duty by a hostile force, or
    • forcibly detained or interned in the line of duty by a foreign government or power
  • are active duty service members that are
    • hospitalized or receiving outpatient medical treatment, and
    • likely to be released from active duty because of service-connected (SC) disability or disabilities that is/are permanent and totally disabling, or
  • were discharged from service under conditions other than dishonorable and
    • have an SC disability or disabilities that is/are permanent and totally disabling (rated 100-percent disabling based on the rating schedule or by reason of individual unemployability (IU))
    • had an SC disability or disabilities that was/were permanent and totally disabling and in existence at death (rated 100-percent disabling based on the rating schedule or by reason of IU), or
    • died as a result of an SC disability or disabilities.
Notes:
  • When a total SC disability rating is in effect at the time of death, but the cause of death is not SC, consider the disability rating to be permanent for DEA eligibility purposes only, even when permanency was not established during the Veteran’s lifetime.
  • Per 38 CFR 3.807(c), eligibility for DEA may be established when disabilities are treated as if SC under 38 U.S.C. 1160 (compensation for certain paired organs or extremities).
  • Disability compensation or Dependency and Indemnity Compensation (DIC) awarded under 38 U.S.C. 1151 does not establish eligibility for DEA.
References:  For more information on

III.iii.6.C.1.b.  Notifying Veterans in Disability Compensation Cases

When claims processors use Redesigned Automated Decision Letter (RADL) to generate a decision notice regarding a Department of Veterans Affairs (VA) decision to rate a Veteran permanently and totally disabled due to SC disabilities, RADL automatically inserts text into the notice that
  • informs the Veteran that his/her dependents may be eligible for DEA, and
  • provides instructions for obtaining more information about DEA from VA.
When claims processors use Personal Computer Generated Letters to notify a Veteran of the same type of decision, they must manually insert the following text into the decision notice:
Your dependents may be eligible for Dependents’ Educational Assistance (Chapter 35).  For more information on this program, please visit the following web site: https://www.vets.gov/education/gi-bill/survivors-dependent-assistance/ or call 1-888-GIBILL-1 (1-888-442-4551).
Important:  The text in the preceding paragraph is not an exact match of the text RADL automatically inserts; claims processors do not need to add the text to decision notices they generate using RADL.

III.iii.6.C.1.c.  Notifying Surviving Spouses in DIC Cases

When notifying a surviving spouse of his/her entitlement to DIC
Exception:  Since an award of DIC under 38 U.S.C. 1151 does not establish eligibility for DEA, disregard the instructions in this block when DIC is awarded under this statute.

III.iii.6.C.1.d.  Notifying Children of Eligibility

Furnish notice of potential eligibility for DEA
  • to the payee-parent (custodian or guardian) of a child that is under age 18, or
  • directly to a child that is 18 to 23 years old.
Reference:  For more information on notifications of eligibility, see M21-1, Part III, Subpart iii, 6.A.1.

III.iii.6.C.1.e.  Notifying Surviving Spouses in Survivors Pension Cases

If DEA eligibility is established, but the eligible surviving spouse is in receipt of Survivors Pension, then
Note:  Do not enclose VA Form 21-8765.

III.iii.6.C.1.f.  Providing Notice in FEC Cases

If VA disability compensation or DIC is not payable because a beneficiary elected to receive Federal Employees’ Compensation (FEC) benefits, perform the actions below to ensure that the notice of DEA eligibility discussed in M21-1, Part III, Subpart iii, 6.A.1 is provided to eligible children:
  • establish a future diary under reason code 30, Regional Office Special Use, with a due date that will expire 60 days before an eligible child reaches the age of 18, and
  • enter Potential DEA Eligibility Notice Needed in the REMARKS field.
Notes:
  • Use a locally generated letter to notify eligible children.
  • If any decision notices are returned as undeliverable because of an incorrect address, obtain the current address from the appropriate district office of the Office of Workers’ Compensation, Department of Labor.
References:  For more information about

III.iii.6.C.1.g.  MSC Responsibilities Regarding Seriously Injured Service Members

Military Service Coordinators (MSCs) are responsible for providing VA Form 22-5490 to members of the Armed Forces that
  • are on active duty
  • are receiving treatment at a(n)
    • military treatment facility
    • VA medical center, or
    • other hospital, and
  • will likely be released from active duty because of SC disability(ies) that is (are) permanent and totally disabling.
MSCs are also responsible for obtaining
  • service members’ current mailing address (to ensure proper notification of decisions regarding their dependents’ eligibility for DEA), and
  • completed VA Forms 22-5490 from dependents (if they are available to complete the form) or mailing the form to dependents for completion.
Upon receipt of a completed VA Form 22-5490, MSCs are responsible for
  • e-mailing a copy of the form to the regional processing office (RPO) of jurisdiction (per M22-4, Part III, 1.02)
  • annotating the top, left-hand corner of the form with (or preparing a cover letter that contains) the
    • phrase PL 109-461, Section 301 Claim, and
    • name and location of the facility where the service member is receiving treatment, and
  • faxing or e-mailing a copy of the annotated form and any relevant medical records to the Operation Enduring Freedom/Operation Iraqi Freedom (OEF/OIF) Coordinator of the regional office (RO) with geographical jurisdiction over the facility in which the service member is receiving treatment.
Note:  The Department of Defense (DoD) renamed the contingency operations of OEF/OIF.  However, the title of the OEF/OIF Coordinator has not changed.
References:  For information about

2.  Initial Determinations of Eligibility for Education Benefits

 


Introduction

This topic contains information about initial determinations of eligibility for education benefits, including

Change Date

September 14, 2016

III.iii.6.C.2.a.  Initial Actions for Determining Eligibility for Education Benefits

Upon receipt of VA Form 22-5490, the RPO of jurisdiction (per M22-4, Part III, 1.02) reviews basic eligibility and determines entitlement to education benefits.  These benefits are payable to Veterans’ dependents and include
  • DEA
  • transferred entitlement to education benefits under 38 U.S.C. 3319, and
  • education benefits under 38 U.S.C. 3311 (Marine Gunnery Sergeant David Fry Scholarship).
Notes:
  • Jurisdiction of education claims processing is determined by the location of the school in which the claimant is enrolled.
  • If an RPO cannot determine eligibility for DEA based on the available evidence, the RPO’s Education Division contacts the station of origination and requests completion of an eligibility extract.
References:  For more information on

III.iii.6.C.2.b.  Determining Entitlement to Disability or Survivors Benefits Before Education Benefits Are Awarded

Except as noted in M21-1, Part III, Subpart iii, 6.B.2.a and c, VA may notconcurrently pay disability or survivors benefits to or for a child that is receiving
  • DEA, or
  • education benefits under the Fry Scholarship (38 U.S.C. 3311).
Use the table below to determine whether the payment of disability or survivors benefits to or for a child is appropriate between the child’s 18th birthday and the effective date of an award of DEA or education benefits under the Fry Scholarship.
If …
Then …
  • the eligible child
    • turned 18 during a routine break between school sessions
    • attended school during the session that immediately preceded the break, and
    • is not permanently incapable of self-support, and
  • the Benefits Delivery Network (BDN) M21 screen shows the effective date of the award of education benefits falls within the month in which the next school session would normally commence
  • award disability or survivors benefits to or for the child throughout the break, and
  • discontinue disability or survivors benefits to or for the child from the effective date of the award of education benefits.
Notes:
  • the eligible child
    • is at least 18 years old
    • attended school during the session that immediately preceded a routine break between school sessions, and
    • is not permanently incapable of self-support, and
  • the BDN M21 screen shows the effective date of the award of education benefits falls within the month that follows the routine break between school sessions
VA determines the eligible child is permanently incapable of self-support
do not discontinue disability or survivors benefits to or for the child when VA begins paying education benefits to the child.
Note:  VA may concurrently pay education benefits to a child that is permanently incapable of self-support while paying disability or survivors benefits to or for the same child.
 
Reference:  Follow the instructions in the VETSNET Awards User Guide to adjust an award to or for a child that
  • is permanently incapable of self-support, and
  • begins attending school.
the eligible child turned 18 during a routine break between school sessions but there is nothing of record indicating the child attended school during
  • the school session that immediately preceded the break, or
  • the school session that immediately followed the break
discontinue the payment of disability or survivors benefits effective the child’s 18th birthday unless VA subsequently receives a VA Form 21-674 showing the child attended school during
  • the school session that immediately preceded the break, and
  • the school session that immediately followed the break.
 
Important:  Follow the instructions in M21-1, Part III, Subpart iii, 6.B.6.f before
References:  For more information on

III.iii.6.C.2.c.  Rating Decisions for Veterans’ Disability Claims

In Veterans’ disability cases, because of the requirement for permanency of the total disability, submit cases to the rating activity for a rating decision if a
  • specific rating determination of eligibility for DEA has not been made, and
  • a future examination has not been scheduled.
References:  For more information on

III.iii.6.C.2.d.  Rating Decisions for Seriously Injured Service Members

Upon receipt of VA Form 22-5490 from an MSC (under the circumstances described in M21-1, Part III, Subpart iii, 6.C.1.g), ROs must take the actions described in the table below.
Note:  OEF/OIF Coordinators are responsible for case-managing claims throughout the procedure described in the table.
Step
Action
1
Establish end product (EP) 290, using the earliest date of receipt of VA Form 22-5490 in a VA facility as the date of claim.
2
 Ensure the RO possesses
  • a mailing address for the service member, and
  • medical evidence sufficient to determine whether the service member has SC disabilities that are permanent and totally disabling.
Notes:
  • If a service member’s mailing address is missing, the RO’s OEF/OIF Coordinator may obtain it through the Veteran Tracking Application (VTA).
  • If the medical evidence of record is insufficient to determine eligibility for DEA, the RO’s development activity is responsible for working with the OEF/OIF Coordinator and MSC to obtain the required medical evidence.
  • The development activity should avoid asking the dependents of service members for copies of the service member’s medical records, as they might not have permission to access such records.
Reference:  For more information about VTA, see the VTA Home Page. (Registration is required.)
3
Prepare a rating decision according to the instructions in M21-1, Part IX, Subpart ii, 2.1.
4
Complete the DEA extract shown in M22-4, Part VII, 3.13c.
5
E-mail a copy of the following to the RPO of jurisdiction (per M22-4, Part III, 1.02):
Reference:  For the e-mail address of individual RPOs, see M21-1, Part III, Subpart iii, 6.C.3.b.
6
File the DEA extract in the service member’s claims folder (or upload a copy of it into his/her electronic claims folder (eFolder)).
7
Did the rating decision establish eligibility for DEA?
If …
Then prepare a decision notice that includes …
yes
We received an application for Dependents’ Educational Assistance (DEA).  We have decided that you have a total disability that is permanent in nature and was incurred or aggravated in the line of duty in the active military, naval, or air service.  Therefore, we’ve granted eligibility for DEA.
In order for VA to pay you service-connected compensation, the military must first release you under honorable conditions.  If you have not done so, and you are within six months of discharge, you should complete and submit VA Form 21-526c, Pre-Discharge Compensation Claim.  Upon receipt, we will decide your disability claim and then notify you of our decision.
no
We received an application for Dependents’ Educational Assistance (DEA) from your dependent,[enter dependent’s name].  We cannot grant eligibility for DEA because we have decided that you do not have a total disability that is permanent in nature and was incurred or aggravated in the line of duty in the active military, naval, or air service.
In order for VA to pay you service-connected compensation, the military must first release you under honorable conditions.  If you have not done so, and you are within six months of discharge, you should complete and submit VA Form 21-526c, Pre-Discharge Compensation Claim.  Upon receipt, we will decide your disability claim and then notify you of our decision.
8
Clear the pending EP 290.
 
Notes:
  • The OEF/OIF Coordinator of the RO with geographical jurisdiction over the facility where the service member is receiving treatment typically takes the actions described in Steps 4 through 6 of the procedure outlined in the table above.
  • Only the dependent named on the VA Form 22-5490 (or the dependent’s legal guardian) may request review of a rating decision to deny eligibility for DEA.

III.iii.6.C.2.e.  Rating Decisions for Death Claims

A determination as to basic eligibility to DEA is generally addressed in a formal rating decision awarding entitlement to DIC, or when the claimant expressly raises the issue.  If this issue has not been disposed of by rating decision in the claims folder, refer the claim to the rating activity for the preparation of a rating decision.
Note:  When a total SC disability rating is in effect at the time of death, but the cause of death is not SC, consider the disability rating to be permanent for DEA eligibility purposes only, even when permanency was not established during the Veteran’s lifetime.
References:  For more information on rating determinations of DEA eligibility, seeM21-1, Part IX, Subpart ii, 2.1.

III.iii.6.C.2.f.  Eligibility Based on Death in Service

Concede that death in service is SC unless a rating is required under M21-1, Part IV, Subpart iii, 1.B.3.b.  Cases in which service connection may be conceded include those in which
  • death resulted from disease, armed conflict, or common accident during service, or
  • the service member is missing or missing in action and death has been presumed by the service department.

3.  Miscellaneous Information on Awards Involving Dependents in Receipt of Education Benefits


Introduction
This topic contains information on awards involving dependents in receipt of education benefits, including

Change Date

November 2, 2018

III.iii.6.C.3.a.  Tracking Education Folders

All education folders are kept in the RPOs in Buffalo, Muskogee, and St. Louis.
Note:  The parent folder (if it has not been converted into an eFolder) is always stored in a separate office.  Even at the RPO, the processing of DEA claims is separate from that of other types of claims.
Reference:  For a listing of the ROs over which each RPO has jurisdiction, seeM21-1, Part IX, Subpart ii, 2.11.a.

III.iii.6.C.3.b.  Providing Notification of Award Actions to RPOs

When an RO takes any award action that affects a claimant’s or beneficiary’s entitlement to education benefits, to include an award action based on an election of education benefits over disability or survivors benefits, the RO must notify the RPO with jurisdiction over the corresponding education folder by sending an e-mail to the RPO’s mailbox:
  • Buffalo – VAVBABUF/RO/EDU
  • Muskogee – VAVBAMUS/RO/EDU, or
  • St. Louis – VAVBASTL/RO/EDU.
Note:  This notification is usually accomplished by e-mailing an electronic copy of the award to the RPO.
Reference:  For a listing of the ROs over which each RPO has jurisdiction, seeM21-1, Part IX, Subpart ii, 2.11.a.

III.iii.6.C.3.c.  DIC Payments to Other Payees Following An Election of Education Benefits

If a child beneficiary in receipt of DIC elects DEA or education benefits under the Fry Scholarship (when concurrent receipt is prohibited), discontinue the DIC payment and provide the increased rates to other payees that are entitled to an increase, from the date DIC was discontinued.
Note:  A child over age 18 who is capable of self-support and is receiving DEA may not be considered as a dependent of a surviving spouse for the purposes of establishing income limitations or the rates payable for Survivors Pension.
References:  For more information on
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