Citation Nr: 0022841 Decision Date: 08/28/00 Archive Date: 09/01/00 DOCKET NO. 98-10 488 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to Survivors' and Dependents' Educational Assistance (DEA) benefits under the provisions of Chapter 35, Title 38, United States Code, for enrollment beginning January 9, 1998. ATTORNEY FOR THE BOARD L. J. Nottle, Counsel INTRODUCTION The veteran had active military service from April 1968 to August 1969. The appellant is the veteran's spouse. Her claim comes before the Board of Veterans' Appeals (Board) on appeal from a February 1998 determination of the Muskogee, Oklahoma, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The RO awarded the veteran a total disability evaluation based on individual unemployability in January 1972, effective from September 1, 1971. 2. The RO notified the veteran's then spouse of her eligibility for Chapter 35 educational assistance benefits in August 1972; this notification letter was mailed to the veteran's then address of record. 3. The RO received the appellant's claim for Chapter 35 educational assistance benefits on January 20, 1998. CONCLUSION OF LAW The evidence does not satisfy criteria for entitlement to DEA benefits under the provisions of Chapter 35, Title 38, United States Code, for enrollment beginning January 9, 1998. 38 U.S.C.A. § 3512 (West 1991); 38 C.F.R. §§ 21.1030, 21.3021, 21.3046 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION This issue before the Board is whether the appellant, who is the veteran's spouse, is entitled to DEA benefits under Chapter 35, Title 38, United States Code. The appellant claims that she is entitled to such benefits for enrollment in a program of education that began in January 1998. She alleges that her entitlement is warranted on the following bases: (1) It was impossible for her to file a claim for such benefits by 1982, as she did not marry the veteran until 1996; (2) The veteran did not have a total (100 percent) rating based on service-connected disabilities and would not have been declared as such until he had been unemployed for 20 years (she asserts that up until 1992, that 70 percent of the veteran's award was based on his service-connected disabilities with the other 30 percent based on his unemployabilty and thus, not considered a 100 percent rating); and (3) For tax purposes, the veteran's 70 percent disability evaluation was applied from 1972 to 1992. During the pendency of the appellant's appeal, certain portions of 38 C.F.R. Part 21 pertaining to claims and effective dates for awards of educational assistance benefits were changed, effective June 3, 1999. See 64 Fed. Reg. 23769 (1999). As indicated in the Board's February 2000 Remand, when a law or regulation changes after a claim has been filed, but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran generally applies. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). In this case, however, the amendments that went into effect on June 3, 1999 did not substantively change any of the regulations applicable to the appellant's claim. They provide that basic eligibility for Chapter 35 benefits is established in one of several ways, including being a spouse of a veteran who has a permanent and total disability evaluation. 38 U.S.C.A. § 3501(a)(1)(D) (West 1991); 38 C.F.R. § 21.3021(a)(3)(i) (1999). The beginning date of the 10-year period of eligibility for a spouse of a veteran with a permanent and total disability evaluation effective after November 30, 1968, is the effective date of the evaluation or the date of notification of such evaluation, whichever is more advantageous to the spouse. 38 U.S.C.A. § 3512(b)(1)(A) (West 1991); 38 C.F.R. § 21.3046(a)(2)(ii) (1999). The record in this case shows that the RO, in a rating decision dated January 1972, awarded the veteran a total (100 percent) disability evaluation based on individual unemployability, effective from September 1, 1971. A VA Form 21E-1994a (Determination of Basic Eligibility and Entitlement) dated in August 1972, specifically notes that, in February 1972, the veteran's disability was determined to be permanent and total. Despite this determination, in April 1992 and August 1992, the veteran submitted VA Forms 21-4138 (Statement in Support of Claim) indicating that the status of his disability had changed and requesting a statement of permanency. Based in part on the veteran's statements submitted in April 1992 and August 1992, on the Board's initial review of the record in February 2000, it was unclear whether and when the RO notified the veteran that he had been found to be totally and permanently disabled. As explained in the Board's Remand, VA Forms 21-6798 (Disability Award) and 20-822 (Control Document and Award Letter) appear to reflect that the veteran was notified of this determination in February 1972, but do not indicate that such notification included a discussion regarding the permanency of the veteran's total disability evaluation. In light of the foregoing, the Board remanded the appellant's claim to the RO in February 2000 for the following purposes: (1) to obtain any document potentially relevant to the question of notification, including the veteran's vocational rehabilitation records and application for Civilian Health and Medical Program of the VA (CHAMPVA), and the veteran's former spouses' Certificates of Eligibility for Chapter 35 benefits; and (2) to identify the document that notified the veteran of the permanency of his total evaluation, and provide adequate reasons and bases as to how the identified document satisfies the Chapter 35 notice requirements. In compliance with the Board's instructions on Remand, the RO associated with the veteran's claims file and the appellant's Chapter 35 folder: (1) a VA Form 21E-1993 (Certificate of Eligibility) issued to Geraldene, the veteran's first spouse, dated August 1972; (2) a VA Form 21E-1993 (Certificate of Eligibility) issued to Cathey, the veteran's second spouse, dated December 1979, and (3) VA Forms 10-3884 (Exchange of Beneficiary Information and Request for Eligibility Data - CHAMPVA) dated April 1985 and July 1985. The certificates of eligibility issued to the veteran's former spouses were mailed to the veteran's addresses on record at those times. These certificates establish that the veteran's former spouses applied for and were in receipt of Chapter 35 benefits (the first spouse, in 1972), actions which would have put the veteran on notice of the eligibility criteria that needed to be met before establishing his spouses' entitlement to such benefits. The other forms also suggest that the veteran was on notice of the permanency of his total disability, at least from 1985, because they specifically note January 31, 1972 as the effective date of the veteran's rating of permanent and total disability. (According to a VA Form 10-3884a (Exchange of Beneficiary Information and Request for Eligibility Data - CHAMPVA) dated January 1997, the effective date was subsequently corrected to September 1, 1971.) As previously noted, the law provides that the 10-year period of eligibility may begin on the date of notification of the veteran's permanent and total disability evaluation if it is more advantageous to the appellant than the effective date of the evaluation. However, in this case, even assuming the veteran was notified of the permanency of his total disability evaluation as late as August 1972, rather than in February 1972 as the RO indicates, the appellant's claim would still fail. Under 38 U.S.C.A. § 3512(b)(1)(A), the appellant was entitled to a 10-year period of eligibility that began on the date the veteran was found to be permanently and totally disabled. Accepting August 1972 as the date of notification, the delimiting date would be August 1982 (as opposed to the delimiting date of February 11, 1982 assigned by the RO). Having submitted her application for Chapter 35 educational assistance benefits in January 1998, the appellant clearly applied for such benefits beyond the legal deadline. While extensions to delimiting dates are allowed on the basis of physical or mental disability, see 38 C.F.R. § 21.3047 (1999), the appellant has not claimed that physical or mental disability prevented her from applying for Chapter 35 benefits. Rather, the appellant has asserted that, because she was not married to the veteran until 1996, she could not apply for Chapter 35 benefits until the delimiting date expired. There is simply no statutory or regulatory provision allowing for the extension of a delimiting date for Chapter 35 educational benefits assistance based on this reason provided by the appellant. Further, the arguments, set forth above, regarding the disability percentages assigned the veteran's various service-connected disabilities over the years as well as the tax consequences of his disability award have no bearing on the matter at hand. In sum, the RO awarded the veteran a total disability evaluation based on individual unemployability in January 1972, effective from September 1, 1971. The RO notified the veteran's then spouse of her eligibility for Chapter 35 educational assistance benefits in August 1972; this notification letter was mailed to the veteran's then address of record. The RO received the appellant's claim for Chapter 35 educational assistance benefits on January 20, 1998. As the appellant failed to submit a claim of entitlement to DEA benefits under Chapter 35, Title 38, United States Code, by August 1982, the Board must deny her claim based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to DEA benefits under the provisions of Chapter 35, Title 38, United States Code, for enrollment beginning January 9, 1998, is denied. S. L. KENNEDY Member, Board of Veterans' Appeals