Decision Date: 07/31/95				Archive Date: 
08/03/95 
DOCKET NO.  93-17 789	)	DATE 
	) 
	) 
 
On appeal from the 
Department of Veterans Affairs Regional Office in Jackson, 
Mississippi 
 
 
THE ISSUE 
 
Entitlement to retroactive payment of benefits under the 
Restored Entitlement Program for Survivors (REPS). 
 
 
REPRESENTATION 
 
Appellant represented by:	Alabama Department of Veterans 
Affairs 
 
 
ATTORNEY FOR THE BOARD 
 
Christine E. Puffer, Associate Counsel 
INTRODUCTION 
 
The veteran had active service from July 1968 to March 1969.  
He died in March 1969, while on active duty. 
 
This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a June 1992 decision of the 
Department of Veterans Affairs (VA) Jackson, Mississippi, 
Regional Office (RO) which denied entitlement to the benefit 
sought on appeal.  By Board decision of June 1971, the 
appellant was recognized as one of the veteran's children. 
 
 
CONTENTIONS OF APPELLANT ON APPEAL 
 
The appellant contends that the RO was incorrect in denying 
retroactive payment of REPS benefits for certain periods of 
time prior to March 1992.  He asserts that the RO's denial 
of benefits was based on an unlawful regulation, which has 
been overturned.  He notes that he received Dependency and 
Indemnity Compensation until turning age 18 on January 2, 
1987, and is seeking benefits from the date he entered full-
time post-secondary school.  He maintains that the RO knew 
of his entitlement to REPS benefits, but failed to inform 
him. 
 
 
DECISION OF THE BOARD 
 
The Board, in accordance with the provisions of 38 U.S.C.A. 
§ 7104 (West 1991), has reviewed and considered all of the 
evidence and material of record in the veteran's claims 
file.  Based on its review of the relevant evidence in this 
matter, and for the following reasons and bases, it is the 
decision of the Board that the evidence supports the claim 
for retroactive payment of REPS benefits. 
 
 
FINDINGS OF FACT 
 
The appellant first became eligible for REPS benefits when 
he was between the ages of 18 and 22, and was enrolled full 
time in an approved post-secondary school. 
 
 
CONCLUSION OF LAW 
 
The criteria for granting retroactive REPS benefits are met.  
38 C.F.R. § 3.812(f) (1994). 
 
 
REASONS AND BASES FOR FINDINGS AND CONCLUSION 
 
REPS benefits shall be paid, in relevant part, to the child 
of a member of the Armed Forces who died on active duty 
before August 13, 1981, provided that the child is between 
the ages of 18 and 21, not disabled, and attending a post-
secondary educational institution.  Public Law 97-377, 
Section 156, 96 Stat. 1929 (1982), quoted in Skinner v. 
Brown, 4 Vet.App. 141, 142 (1993).  The record reflects that 
the veteran was killed while serving on active duty in March 
1969.  The appellant turned age 18 on January 2, 1987, and 
has reported attending post-secondary school. 
 
The appellant's application for REPS benefits was received 
in April 1992.  In June 1992 the RO informed the appellant 
that his claim had been denied as it had been untimely 
filed.  In fact, the relevant regulation, 38 C.F.R. § 
3.812(f), delineates certain time limits for the payment of 
retroactive REPS benefits.  However, the United States Court 
of Veterans Appeals (Court) held invalid subparagraphs (2) 
and (3) of 38 C.F.R. § 3.812(f), which imposed time-specific 
filing requirements for claims involving children's REPS 
benefits.  See Skinner at 144.  Furthermore, on appeal by 
the Secretary of the VA, the Federal Circuit Court found 38 
C.F.R. § 3.12(f)(2)-(3) to be invalid as in excess of 
statutory authority.  Skinner v. Brown, 27 F.3d 1571 
(Fed.Cir. 1994). 
 
Given that 38 C.F.R. § 3.812(f)(2)-(3) has been determined 
to be an invalid regulation in excess of the Secretary's 
statutory authority to prescribe regulations implementing 
the REPS benefits, the time limit for filing a claim for 
retroactive REPS benefits is no longer applicable.  
Therefore, the appellant is entitled to REPS benefits from 
the first date that he became eligible; i.e., was between 
the ages of 18 and 22 and attending an approved post-
secondary school on a full-time basis.  Accordingly, the 
Board concludes that the appellant is entitled to 
retroactive payment of REPS benefits from the first date he 
satisfied relevant criteria. 
 
 
ORDER 
 
The appellant is entitled to retroactive payment of REPS 
from the first date he became eligible for the same.  The 
benefit sought on appeal is allowed. 
 
 
 
 
 
 
 
		 
	CHARLES E. HOGEBOOM. 
	Member, Board of Veterans' Appeals 
 
The Board of Veterans' Appeals Administrative Procedures 
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 
___ (1994), permits a proceeding instituted before the Board 
to be assigned to an individual member of the Board for a 
determination.  This proceeding has been assigned to an 
individual member of the Board. 
 
NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West 
1991), a decision of the Board of Veterans' Appeals granting 
less than the complete benefit, or benefits, sought on 
appeal is appealable to the United States Court of Veterans 
Appeals within 120 days from the date of mailing of notice 
of the decision, provided that a Notice of Disagreement 
concerning an issue which was before the Board was filed 
with the agency of original jurisdiction on or after 
November 18, 1988.  Veterans' Judicial Review Act, Pub. L. 
No. 100-687, § 402 (1988).  The date which appears on the 
face of this decision constitutes the date of mailing and 
the copy of this decision which you have received is your 
notice of the action taken on your appeal by the Board of 
Veterans' Appeals. 
 
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