Citation Nr: 0412650 Decision Date: 05/14/04 Archive Date: 05/19/04 DOCKET NO. 03-21 864 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an effective date prior to March 13, 2002, for payment of Dependents Educational Assistance (DEA) benefits pursuant to 38 U.S.C. Chapter 35. ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The veteran served on active duty from March 1968 to July 1979. The appellant is the daughter of the veteran. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. FINDINGS OF FACT 1. The appellant is the veteran's daughter. 2. A December 29, 2000, rating decision found the veteran to be permanently and totally disabled as a result of his service-connected disabilities, effective from June 28, 2000. He was notified of this award by VA correspondence dated January 10, 2001. 3. The appellant filed a claim of entitlement to DEA benefits on March 13, 2003, requesting benefits for coursework at Texas Southern University that began in January 2003. 4. The appellant filed a second claim of entitlement to DEA benefits in April 2003, requesting reimbursement of expenses incurred while attending coursework at Texas Southern University from January 2001 to December 2002. 6. In April 2003 the RO granted the appellant DEA benefits for all enrollments pursued from March 13, 2002. CONCLUSION OF LAW The criteria for an effective date prior to March 13, 2002, for an award of DEA benefits under Chapter 35, Title 38, United States Code, have not been met. 38 U.S.C.A. §§ 3501, 5113 (West 2002); 38 C.F.R. §§ 21.3021, 21.4131 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background The appellant is the daughter of the veteran. An electronic enrollment certification for the appellant was received by VA on March 7, 2003. The form reported the appellant's enrollment in four courses at Texas Southern University. The enrollment was for a period beginning on January 13, 2003, and ending on May 10, 2003. The form was signed by the certifying official on March 3, 2003. A paper copy of VA Form 22-5490, Application for Survivors' and Dependents' Educational Assistance, for the appellant was received at the RO on March 13, 2003. The application indicated that the appellant had been attending college since 1998. The appellant was requesting benefits for the same January 2003 to May 2003 period as reported on the electronic form, although the ending date was listed as May 15, 2003. The form was signed by the appellant and dated December 3, 2002. The Board notes that the appellant was over 21 years of age at the time she submitted her claim. A second electronic certification was faxed to the RO on March 12, 2003. The electronic form had been printed and faxed. The certifying official had signed the form on February 4, 2003. Associated with the education file is a Report of School Contact that is date stamped March 17, 2003. The form reported contact with the same person listed as the certifying official on the two previous electronic enrollment certification forms discussed above. A second VA Form 22-5490 was received at the RO on March 18, 2003. Although this form was also dated December 3, 2002, it appeared to be completed by a different person than the first form 22-5490 that had been received by the RO. In addition, there were alterations on the second form that did not appear on the form received previously such that the forms were clearly not copies of one another. Also associated with the education file is a Chapter 35 Eligibility Information Exchange form dated in April 2003. The form verified the appellant's relationship to the veteran and that basic eligibility for Chapter 35 benefits had been established. In particular the veteran had been found to have a permanent and total service-connected disability with an effective date of June 28, 2000. The date of the initial rating decision was December 29, 2000. The date of notification of the rating action was January 10, 2001. The appellant was notified that she qualified for Chapter 35 benefits by way of an undated letter from the RO. The letter informed the appellant that she had eight years to use her benefits from the beginning date as selected by the appellant. She was informed that she could choose from the date of June 28, 2000, the date the veteran became permanently and totally disabled; or, the date of January 10, 2001, the date of notification of the rating action; or, any date between those two dates. The appellant submitted electronic enrollment certifications for six separate periods of instruction through her school's certifying official in April 2003. The periods of instruction ranged from January 2001 through December 2002. The appellant also selected a beginning date of January 10, 2001, in response to the RO's letter. The RO acknowledged the submission of the enrollment certifications in April 2003. The appellant's claim for benefits was denied because her initial claim was received in March 2003, more than one year after her enrollment began on January 16, 2001. Therefore, the RO determined that no benefits could be paid prior to "March 13, 2003 [sic]." Associated with the education file is a message from the Muskogee RO to the RO in Houston, Texas. The message certifies the appellant's entitlement to Chapter 35 benefits with an effective date of March 13, 2002. The appellant submitted her notice of disagreement in May 2003. She noted that she had received benefits from March 13, 2002. She said that she had filled out her paperwork to obtain benefits and had submitted it in December 2002 or January 2003. She said that the date on her application form was December 3, 2002. She felt that the RO had put in the wrong date for her effective date and that she should be paid benefits from at least January 2002. The appellant was issued a statement of the case (SOC) in May 2003. The issue was identified as whether additional benefits could be paid prior to March 13, 2002. The SOC noted that the veteran was rated permanently and totally disabled in December 2000. The appellant's claim for Chapter 35 benefits was received in March 2003. The SOC indicated that the appellant had to file an original application within one year from the date of the rating in order to receive retroactive benefits. Since her application was not received until March 2003, Chapter 35 benefits could not be paid prior to March 13, 2002. The appellant's substantive appeal was received in July 2003. She argued that she had filled out the correct information and had it sent to VA by the certifying official at her school. She said the certifying official had received an e- mail from VA stating that the submission had been received. II. Analysis Basic eligibility for Chapter 35 benefits is established in one of several ways, including being the child of a veteran who has a total and permanent disability rating for a service-connected disability. 38 U.S.C.A. § 3501(a)(1)(A) (West 2002); 38 C.F.R. § 21.3021 (2003). The issue in this case is not whether the appellant is eligible for Chapter 35 benefits, as eligibility has been established. Rather, the issue that must be decided in this case is the proper commencing date for the award of Chapter 35 DEA benefits. The applicable regulations provide that, for the first award of Chapter 35 educational benefits, the commencing date of the award of educational assistance shall be the latest of: * * * * * (d)(1) (i) The beginning date of eligibility as determined by § 21.3041 (a) or (b) or by § 21.3046(a) or (b), whichever is applicable; (ii) One year before the date of claim as determined by § 21.1029(b); (iii) The date the educational institution certifies under paragraph (b) or (c) of this section; (iv) The effective date of the approval of the course, or one year before the date VA receives that approval notice, whichever is later. 38 C.F.R. § 21.4131(d)(1) (2003). Subsection (b) of 38 C.F.R. § 21.4131 provides: (b) Certification by school -- the course or subject leads to a standard college degree. (1) When the student enrolls in a course offered by independent study, the commencing date of the award or increased award of educational assistance will be the date the student began pursuit of the course according to the regularly established practices of the educational institution. (2) Except as provided in paragraphs (b)(3), (b)(4) and (b)(5) of this section when a student enrolls in a resident course or subject, the commencing date of the award or increased award of educational assistance will be the first scheduled date of classes for the term, quarter or semester in which the student is enrolled. (3) When the student enrolls in a resident course or subject whose first scheduled class begins after the calendar week when, according to the school's academic calendar, classes are scheduled to commence for the term, quarter, or semester, the commencing date of the award or increased award of educational assistance allowance will be the actual date of the first class scheduled for that particular course or subject. (4) When a student enrolls in a resident course or subject, the commencing date of the award will be the date the student reports to the school provided that - (i) The published standards of the school require the student to register before reporting, and (ii) The published standards of the school require the student to report no more than 14 days before the first scheduled date of classes for the term, quarter or semester for which the student has registered, and no later than the first scheduled date of classes for the term, quarter or semester for which the student has registered. (5) When the student enrolls in a resident course or subject and the first day of classes is more than 14 days after the date of registration, the commencing date of the award or the increased award of educational assistance will be the first day of classes. 38 C.F.R. § 21.4131 (b) (2003). Except in special circumstances, none of which is applicable here, before any program of education can be provided, a child must have reached their 18th birthday or completed their secondary schooling, whichever is earlier. 38 C.F.R. § 21.3040(a) (2003). The beginning date of a period of eligibility for a child, as referred to in 38 C.F.R. § 21.4131(d)(1), is governed by 38 C.F.R. § 21.3041(a) (2003). Generally, the basic beginning date for a child's period of eligibility is their 18th birthday or successful completion of secondary schooling, whichever occurs first. An exception to this date is possible if the effective date of the permanent and total disability rating occurs after the child has reached 18 but before she has reached 26. In that case, the beginning date of eligibility will be the effective date of the rating or the date of notification to the veteran from whom the child derives eligibility, whichever is more advantageous to the eligible child. 38 C.F.R. § 21.3041 (b)(2)(ii). The information provided by the appellant on her VA Form 22- 5490 shows that she graduated from high school in 1998 when she was 18 years of age. She was enrolled at Texas Southern University from 1998 until the time of her claim in March 2003. The appellant would not be 26 until January 2006. The appellant's circumstances are such that she would qualify for a beginning date of eligibility between June 28, 2000, and January 10, 2001, a period after her 18th birthday and before her 26th. This is because the veteran was not rated as permanently and totally disabled until December 2000 with an effective date of June 28, 2000, and notice of the rating action provided on January 10, 2001. These dates are just as noted by the RO when the appellant was first advised that she was eligible for Chapter 35 benefits and asked to elect a beginning date between June 28, 2000, and January 10, 2001. The appellant elected January 10, 2001 as her beginning date. The RO notice to the appellant informed her that she could not be paid for any training taken before the date she selected as her beginning date. The "date of claim" is defined as the date on which a valid claim or application for educational assistance is considered to have been filed with VA, for purposes of determining the commencing date of an award of that educational assistance. 38 C.F.R. § 21.1029(b) (2003). In this case, the college certifying official sent an electronic certification of the appellant's enrollment for the period from January 13, 2003, to May 10, 2003. This form was dated as sent on March 3, 2003, and received by VA on March 7, 2003. A VA Form 22-5490 for the appellant, dated in December 2002, was received at the RO on March 13, 2003. A second electronic certification form, dated February 4, 2003, was faxed to a location, apparently the RO, on March 12, 2003. The electronic certification forms are not considered as an informal claim for benefits. See 38 C.F.R. § 21.1029(b). The submission, and receipt, of the VA Form 22-5490 constitutes a formal claim for Chapter 35 education benefits for the period from January 13, 2003, to May 10, 2003. This claim was received by the RO on March 13, 2003. By virtue of the veteran's December 29, 2000, total disability evaluation, which was made effective from June 28, 2000, the appellant became potentially eligible for Chapter 35 DEA benefits as of June 28, 2000 (eligibility date); however she elected the date of notification of January 10, 2001, as her effective date. The RO received the appellant's application for educational assistance on March 13, 2003, (application date). The appellant's course of study was certified by her educational institution as having begun on January 13, 2003, (certification date). The date of approval for the course, or notice of the approval, is not of record. In addition to the above provisions, Congress revised the law governing, in pertinent part, effective dates for awards of Chapter 35 benefits. See Veterans Benefits and Health Care Improvement Act of 2000 (Act), Pub. L. No. 106-419, § 113, 114 Stat. 1832 (2000) (codified as amended at 38 U.S.C.A. § 5113 (West 2002)). 38 U.S.C.A. § 5113 provides in pertinent part: (b)(1) When determining the effective date of an award under chapter 35 of this title for an individual described in paragraph (2) based on an original claim, the Secretary may consider the individual's application as having been filed on the eligibility date of the individual if that eligibility date is more than one year before the date of the initial rating decision. (2) An individual referred to in paragraph (1) is an eligible person who- (A) submits to the Secretary an original application for education assistance under chapter 35 of this title within one year of the date that the Secretary makes the rating decision; (B) claims such educational assistance for pursuit of an approved program of education during a period preceding the one-year period ending on the date on which the application was received by the Secretary; and (C) would have been entitled to such educational assistance for such course pursuit if the individual had submitted such an application on the individual's eligibility date. (3) In this subsection: (A) The term 'eligibility date' means the date on which an individual becomes an eligible person. (B) The term 'eligible person' has the meaning given that term under section 3501(a)(1) of this title under subparagraph A(i), A(ii), (B), or (D) of such section by reason of either (i) the service-connected death or (ii) service-connected total disability permanent in nature of the veteran from whom such eligibility is derived. (C) The term 'initial rating decision' means with respect to an eligible person a decision made by the Secretary that establishes (i) service connection for such veteran's death or (ii) the existence of such veteran's service-connected total disability permanent in nature, as the case may be. 38 U.S.C.A. § 5113 (b) (West 2002) In this case, the appellant did not file a claim within one year of the December 2000 rating decision. Accordingly, the provisions of 38 U.S.C.A. § 5113 are not applicable to establish an earlier effective date for the commencement of the appellant's award. The Board notes that the date of approval for the course, or notice of the approval, is not of record. However, this is not necessary in this case. If the date or notice of approval was prior to March 13, 2002, it would not allow for the establishment of an earlier effective date. If the date of approval were concurrent with, or later than, March 13, 2002, that date would be the latest, and would result in an even later date for the commencement of her award. This would be of less benefit for the appellant. Further, even if notice of approval was received concurrent with, or after, March 13, 2002, and the one-year prior period determined under 38 C.F.R. § 4131(d)(1)(iv), the appellant would not be entitled to an earlier effective date. She has been given the most favorable date for an effective date under the regulations. Education benefits have been paid for all periods beginning with March 13, 2002. By operation of 38 C.F.R. § 21.4131, March 13, 2002, one year prior to the application date, and the latest of the dates noted above, is the earliest effective date for the award of benefits. See generally Taylor v. West, 11 Vet. App. 436 (1998). The appellant's claim for an earlier effective date prior to March 13, 2002, for a grant of Chapter 35 DEA benefits is accordingly denied. The Board has also considered the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)), and its implementing regulations, codified as amended at 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a)) (2003). The appellant has been provided notice of the evidence necessary to establish an earlier effective date for the award of her Chapter 35 benefits. Specifically, she has been notified that there must be proof of receipt of her claim prior to March 13, 2003. The appellant stated in her substantive appeal that she had the school certifying official send the correct information on her claim and that the certifying official received an e- mail from VA stating the information was received. However, the appellant has not provided any evidence that an original or a copy of an application for benefits was received prior to March 13, 2003. The certifying official sent a certification electronically and by hard copy in March 2003. A copy of a second VA Form 22-5490 was received on March 18, 2003, although it is not clear this was from the certifying official. The certifications did not serve as a claim and the date of receipt of the VA Form 22-5490 was later than the date of receipt of the first copy. In any event, the appellant was given notice of what evidence she needed to submit to establish an earlier effective date. She failed to submit any additional evidence. The appellant was issued a statement of the case (SOC) in May 2003 that provided the pertinent provisions of law and regulation. The SOC detailed the evidence of record and addressed the reasons and bases for the denial of an earlier effective date for the payment of Chapter 35 benefits. The RO also wrote to the appellant and again informed her of why she was not entitled to an earlier effective date, based on the evidence of record. She was informed that her claim was not received until March 13, 2003, and that benefits could therefore not be paid prior to March 13, 2002. The Board finds that every effort has been made to seek out evidence helpful to the appellant. The appellant has said that she submitted paperwork to her college certifying official prior to her effective date. However, no evidence has been provided to VA, from either the appellant or the certifying official, to show that a claim was made for Chapter 35 benefits prior to March 13, 2003. The Board is not aware of any outstanding evidence. Therefore, the Board finds that the VA has complied with the duty-to-assist requirements found at 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)-(e) (2003). ORDER Assignment of an effective date prior to March 13, 2002, for payment of Chapter 35 DEA benefits is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2