Wright v. McDonough, Case Number 20-2154, decided August 4, 2023 involves a narrow question of entitlement to a dependent allotment for a child of a totally disability veteran when that child has exhausted their DEA benefits before finishing their schooling.
The veteran’s daughter exhausted her DEA benefits, but was still in school and he sought her to continue as a dependent as a full-time student until her graduation date. The VA took the position that once a child elects Chapter 35 benefits (DEA) the decision is final and the VA cannot add them back to the veteran’s award.
The Court looked not only at the relevant statute, but its history (including hearings). The Court ultimately looked to the plain meaning of the statute and found “the statute is clear that subsection (1) prohibits certain payments to adult children, and subsection (2) prohibits certain payments to those who receive payments because of their relationship to that adult child, including a veteran parent. Moreover, because the appellant's arguments that § 21.3023 is "inconsistent with [section] 3562 as well as . . . [section] 1115(1)(F)" and that the Board misapplied that regulation both rest on the incorrect notion that the section 3562 bar to payments applies only to the eligible person, those contentions also must fail.” Id. at *19.
As to what benefits are barred, the Court found “the bar in subsection (2) applies to a veteran parent who may receive payments by reason of having an adult child. Thus, it is the first clause of the definition of compensation that is pertinent to subsection (2)—"a monthly payment made by the Secretary to a veteran because of service-connected disability." 38 U.S.C. § 101(13) (emphasis added). That means subsection (2) bars the veteran from receiving "increased rates" or "additional amounts" of monthly payments of disability compensation that would otherwise be paid because of his or her adult child.” Id. at *21.
As to whether the bar to benefits could be lifted, the Court found it could not begin again.
The Court ultimately held: “To summarize the above statutory interpretation, the Court concludes that the section 3562(2) bar to payments (1) is triggered when an adult child begins an educational program intended to lead to an educational, professional, or vocational objective at a secondary school, (2) applies to a permanently and totally disabled veteran parent who may otherwise receive payments because his or her adult child is attending an educational institution, (3) prohibits the payment of "additional" monthly compensation to the veteran parent under section 1115(1)(F), and (4) is permanent.” Id. at *27.
Decision by Judge Meredith and joined by Chief Judge Bartley and Judge Pietsch.
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