Citation Nr: 9829484 Decision Date: 10/01/98 Archive Date: 10/13/98 DOCKET NO. 96-27 520A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to retroactive educational assistance benefits, under Chapter 35, Title 38, United States Code, for enrollment pursued prior to October 16, 1994. ATTORNEY FOR THE BOARD L. Helinski, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from a January 1996 determination by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the benefit sought on appeal. The appellant is the son of the veteran, who had active military service from November 1950 to May 1977, and died on December [redacted], 1981. CONTENTIONS OF APPELLANT ON APPEAL The appellant, the veteran’s son, essentially contends that he should be entitled to retroactive educational assistance benefits for enrollment pursued from approximately September 1987 to May 1991. He maintains that for many years, his mother had been trying to establish service-connection for the cause of the veteran’s death. However, the RO did not grant service connection until May 1995. As such, the appellant did not apply for educational benefits until after that time, in October 1995. The appellant contends that he could not have applied for Chapter 35 benefits any earlier, since his father’s death had not been service-connected. In short, he requests a favorable determination. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1998), has reviewed and considered all of the evidence and material of record in the appellant’s Chapter 35 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 there is no legal basis for an award of retroactive educational assistance benefits, under Chapter 35, Title 38, United States Code, for enrollment pursued prior to October 16, 1994. FINDINGS OF FACT 1. The veteran, who had active military service from November 1950 to May 1977, died on December [redacted], 1981; in a May 1995 rating decision, the RO granted service connection for the cause of the veteran’s death. 2. On October 16, 1995, the RO received the appellant’s Application for Survivors’ and Dependents’ Educational Assistance, along with certification of enrollment at the University of Northern Colorado, reflecting periods of enrollment from September 1987 to November 1990, and certification of enrollment at the University of Colorado at Colorado Springs, reflecting a period of enrollment from January 1991 to May 1991. CONCLUSION OF LAW There is no legal basis for an award of retroactive educational assistance benefits under Chapter 35, Title 38, United States Code, for enrollment pursued prior to October 16, 1994. 38 U.S.C.A. §§ 3500, 3512 (West 1991); 38 C.F.R. §§ 21.3021, 21.3041, 21.4131(a) (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSION The present appeal arises from the appellant’s claim of entitlement to Chapter 35 education benefits for periods of enrollment that he pursued in the past. According to the law, basic eligibility for educational assistance benefits under Chapter 35, Title 38, United States Code, may be established in several ways, including being a child of a veteran who died of a service-connected disability. 38 U.S.C.A. § 3501(a)(1)(A)(i) (West 1991); 38 C.F.R. § 21.3021(a)(1)(i) (1997). The basic facts of this case are not in dispute, and are summarized as follows. Information in the appellant’s Chapter 35 file reveals that the veteran had active military service from November 1950 to May 1977. The appellant, the veteran’s son, was born on January [redacted], 1969. The veteran died on December [redacted], 1981, and in a May 1995 rating decision, the RO granted service connection for the cause of the veteran’s death. Shortly thereafter, on October 16, 1995, the RO received the appellant’s VA Form 22-5490, Application for Survivors’ and Dependents’ Educational Assistance; the appellant was 26 years old at that time. The appellant also submitted school certification from the University of Northern Colorado, which reflects periods of enrollment from approximately September 1987 to November 1990, and certification from the University of Colorado at Colorado Springs, which reflects a period of enrollment from January 1991 to May 1991. In a November 1995 VA letter, the appellant was notified that he was eligible for educational assistance benefits under Chapter 35. The RO requested that the appellant submit the name of the course of study that he wished to pursue. Subsequently, in a statement received at the RO in December 1995, the appellant indicated that he was requesting retroactive benefits for courses he had already pursued, as evidenced by the certifications he submitted with his original application. The RO responded in a January 1996 VA letter, that as the appellant’s original claim for educational assistance benefits was received on October 16, 1995, benefits could not be paid for enrollment prior to October 16, 1994. The appellant disagreed with that determination, which is the subject of this appeal. According to the law, after establishing basic eligibility for Chapter 35 benefits, other factors are considered in determining the commencing date of an award of educational assistance allowance. Pursuant to 38 C.F.R. § 21.4131(a), the commencing date of an award of Chapter 35 educational assistance benefits will be determined based on the latest of the following dates: the date certified by the educational institution; the date one year prior to the VA’s receipt of the claimant’s application or enrollment certification, whichever is later; the effective date of the course approval, or, one year before the VA receives the approval notice, whichever is later; or, the date of a reopened application. 38 C.F.R. § 21.4131(a). In other words, the regulations prohibit an award of educational assistance for any period earlier than one year prior to the date of receipt of the application or enrollment certification, whichever is later. See id. The Board has thoroughly reviewed the evidence of record, in conjunction with the applicable legal criteria summarized above. However, the Board must conclude that there is no legal basis for the appellant’s claim, and his appeal must be denied. As noted earlier, there is no dispute in this case that the appellant established Chapter 35 eligibility. Rather, the issue involves the commencement date of Chapter 35 eligibility benefits. As summarized above, the law is clear that the commencing date of an award of educational assistance benefits may not begin earlier than one year prior to the date of receipt of the application or enrollment certification, whichever is later. See 38 C.F.R. § 21. 4131(a). In the present case, the appellant’s claim and enrollment certifications were received on October 16, 1995. As such, the earliest date that an award of educational assistance benefits could commence is October 16, 1994, the date one year prior to the date of receipt of the appellant’s claim for benefits. In short, there is no legal basis for an award of educational assistance benefits pursuant to Chapter 35, Title 38, United States Code, prior to October 16, 1994. The Board acknowledges the appellant’s contention that he could not apply for educational assistance benefits at the time he was attending school, because his father’s death was not service-connected until May 1995. However, the Board notes that the United States Court of Veterans Appeals (Court) rejected a similar argument in the case of Erspamer v. Brown, 9 Vet. App. 507 (1996). In that case, the Court reiterated that the purpose of Chapter 35 Survivors’ and Dependents’ Educational Assistance benefits is to provide “opportunities for education to children whose education would otherwise be impeded or interrupted by reason of the disability or death of a parent from a [service-connected disability], and for the purpose of aiding such children in attaining the educational status which they might normally have aspired to and obtained but for the disability or death of such parent.” 38 U.S.C.A. § 3500. The Court also indicated that the intent of the Chapter 35 statue was clear on its face. Erspamer, 9 Vet. App. at 509-510. Erspamer involved the son of a deceased veteran, who sought retroactive educational assistance under Chapter 35 for a law school education that he had completed several years prior to the RO granting service connection for the cause of the veteran’s death. The appellant contended that if not for the RO’s delay in granting service connection for the cause of his father’s death, he would have been awarded educational assistance for his law school education. The Court rejected the appellant’s arguments, holding that by not submitting an application for Chapter 35 benefits during the period of eligibility, there was simply no legal basis to award educational assistance benefits many years after the period of eligibility, and to hold otherwise would conflict with the express intent of Chapter 35. Id. The facts of Erspamer are helpful in understanding the outcome of the present case, and lead the Board to the conclusion that there is no legal basis to award the appellant educational assistance benefits for enrollment prior to October 16, 1994. Although the appellant in the present case submitted his application for benefits during his eligibility period, the law simply does not permit an award of benefits prior to one year before receipt of the claim, regardless of when the appellant’s father’s death became service-connected. See 38 C.F.R. § 21.4131(a). Such a conclusion is consistent with the purpose of Chapter 35 benefits, in that the appellant has presented no evidence that his education was “impeded” or “interrupted,” by the veteran’s death. Nor is there any evidence of record that the appellant completed his schooling with the intent that the VA would reimburse his tuition. See 38 U.S.C.A. § 3500; Erspamer, 9 Vet. App. at 509. Rather, the education for which the appellant seeks reimbursement in this case was completed several years before the appellant submitted an application for educational assistance to the VA. See 38 C.F.R. § 21.4131(a). “To hold otherwise would conflict with the express intent of [Chapter 35].” Erspamer, 9 Vet. App. at 510. In summary, the law is clear that an award of educational assistance benefits for a time period more than one year prior to the date of receipt of application for benefits or the enrollment certification, whichever is later, is not permissible. The Board is bound by the laws enacted by Congress, and interpreted by the Court, and is not free to ignore or make exceptions to those laws. In conclusion, as analyzed above, there is no legal basis for a retroactive award of educational assistance benefits under Chapter 35, Title 38, United States Code, for enrollment pursued prior to October 16, 1994, and the appellant’s claim must fail. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (where the law is dispositive, the claim should be denied on the basis of the absence of legal merit). ORDER The appeal is denied. ALAN S. PEEVY Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), 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, 102 Stat. 4105, 4122 (1988). 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