Citation Nr: 0814249 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 06-37 704 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether the appellant is entitled to an extension of her delimiting date for receipt of educational benefits pursuant to the Survivors' and Dependents' Educational Assistance (DEA) Program under Chapter 35, Title 38, United States Code. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The veteran had active service from February 1968 to August 1969. The appellant is the veteran's spouse. This case is before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision by the Department of Veterans Affairs (VA) Education Center (EC) in Muskogee, Oklahoma, that denied the appellant's claim for an extension of her delimiting date for DEA benefits. The appellant testified at a personal hearing before the undersigned Veterans Law Judge sitting at VA's Regional Office (RO) in Seattle, Washington. A transcript of the testimony is associated with the claims file. FINDINGS OF FACT 1. The appellant was denied entitlement to DEA benefits under Chapter 35 by RO decisions in November 1973 and September 1974 based on a finding that the veteran's 100 percent schedular disability rating was not considered permanent and total (P&T) at those times. 2. A March 19, 1975 letter erroneously notified the appellant that she was entitled to Chapter 35 DEA benefits and that her delimiting date was August 12, 1979. 3. The veteran was subsequently found to be permanently and totally disabled by rating decision dated June 12, 1980; thus establishing entitlement to Chapter 35 DEA benefits as of that date; however, there is no indication in the claims file that the appellant or the veteran ever received notification of that rating decision, given that an erroneous delimiting date of August 1979 had already been established. 4. There is no evidence of record that the commencement date for the appellant's eligibility to Chapter 35 DEA benefits has been established by VA; thus, the proper delimiting date for DEA benefits has not yet been established. CONCLUSIONS OF LAW 1. The presumption of administrative regularity with regard to whether the veteran received notification of the P&T rating in 1980 is rebutted by clear evidence to the contrary. 38 U.S.C.A. § 5104; Crain v. Principi, 17 Vet. App. 182, 190 (2003). 2. Due to an administrative error on the part of VA that resulted in lack of proper notice as to the date on which the veteran's disability became P&T, commencement of the period during which the appellant is eligible for Chapter 35 DEA benefits has not yet begun to run. 38 U.S.C.A. §§ 3501(a)(1)(D), 3512(b)(1) (West 2002 & Supp. 2007); 38 C.F.R. §§ 21.3021(a)(3)(i), 21.3046(a)(2)(ii), (c); 21.3047 (2007). 3. Resolving all doubt in the appellant's favor, the criteria for an extension of the appellant's delimiting date for receipt of educational benefits pursuant to the DEA program under Chapter 35, Title 38, United States Code have been met. 38 U.S.C.A. §§ 3501(a)(1)(D), 3512(b)(1) (West 2002 & Supp. 2007); 38 C.F.R. §§ 21.3021(a)(3)(i), 21.3046(a)(2)(ii), (c); 21.3047 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant seeks an extension of the delimiting date for her award of DEA benefits. Basic eligibility for Chapter 35 benefits is established in one of several ways, including being the spouse of a veteran who has a total disability permanent in nature resulting from a service-connected disability. 38 U.S.C.A. § 3501(a)(1)(D); 38 C.F.R. § 21.3021(a)(3)(i). Under the rule regarding the payment of educational assistance benefits under Chapter 35, Title 38, United States Code, for a veteran's spouse, the beginning date 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 veteran's total and permanent rating or the date of notification, whichever is more advantageous to the spouse. 38 U.S.C.A. § 3512(b)(1); 38 C.F.R. § 21.3046(a). Educational assistance shall not exceed 10 years after one of the following last occurs: (A) The date on which the Secretary first finds the spouse from whom eligibility is derived has a service-connected total disability permanent in nature; (B) The date of death of the spouse from whom eligibility is derived who dies while a total disability evaluated as permanent in nature was in existence; (C) The date on which the Secretary determines that the spouse from whom eligibility is derived died of a service-connected disability. 38 U.S.C. § 3512(b)(1); 38 C.F.R. § 21.3021(a). The 10-year delimiting period may be extended if the eligible spouse or surviving spouse does the following: (1) applies for the extension within the appropriate time limit; (2) "was prevented from initiating or completing the chosen program of education within the otherwise applicable eligibility period because of a physical or mental disability that did not result from . . . willful misconduct;" (3) provides VA with any requested evidence tending to show that he/she was prevented from initiating or completing the program because of a physical or mental disability that did not result from the willful misconduct of the eligible spouse; and (4) is otherwise eligible for payment of educational assistance for the training pursuant to Chapter 35. 38 U.S.C.A. § 3512 (b)(2); 38 C.F.R. § 21.3047(a)(i-iv). An eligible spouse's extended period of eligibility shall be for the length of time that the individual was prevented from initiating or completing her chosen program of education. 38 C.F.R. § 21.3047(c). Historically, the veteran was released from active duty in August 1969 and immediately placed on the Temporary Disability Retired List (TDRL). Shortly after separation from service, service connection for schizophrenia was granted and an initial 70 percent rating was assigned, effective from August 12, 1969, the day after separation from service. The 70 percent rating was subsequently increased to 100 percent, effective from June 1, 1972. In letters to the appellant dated in November 1973 and September 1974, the RO denied the appellant's claims for a DEA allowance, explaining that she was not eligible for DEA benefits because, although her husband's service-connected disability was rated 100 percent disabling, the permanency of his disability had not yet been established. Despite no change in the veteran's disability status, the RO erroneously sent a letter to the appellant in March 1975, notifying her that she was entitled to Chapter 35 DEA benefits and that her delimiting date was August 12, 1979 (10 years after the veteran's separation from service). The information in the March 1975 letter was clearly sent in error because the veteran's service-connected disability was not rated 100 percent disabling until June 1, 1972 and permanency of the disability was not established until more than five years after the March 1975 letter was issued. At her personal hearing in July 2007, the appellant testified that during the 1980's, she inquired as to her eligibility for Chapter 35 DEA benefits; but, she was told numerous times that her delimiting date of August 12, 1979 had passed, and as such, she was not entitled to such benefits. Although an erroneous delimiting date of August 12, 1979 had been established, the veteran's service-connected schizophrenia was not found P&T until June 1980. Apparently, the RO issued a rating decision on June 7, 1980, finding that the veteran's service-connected disability was P&T. Therefore, according to 38 C.F.R. § 21.3046, the commencement date for the appellant's eligibility for DEA benefits should have been June 7, 1980 (the date on which the P&T rating decision was issued) or the date the appellant was notified of that decision, whichever is more advantageous to the appellant. The RO determined that the appellant was notified of the P&T decision in June 1980, and thus the delimiting date should have been 10 years later, or June 1990. However, the appellant asserts that she never received notification of the June 1980 P&T rating. There is no evidence in the file to indicate that such a letter was generated, or that the appellant was notified of her eligibility for DEA benefits. This is not surprising, given that an erroneous delimiting date of August 1979 had already been established, and that date had long since passed. Despite the veteran's assertions, there is a presumption of regularity under which it is presumed that government officials "have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926); Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (VA need only mail notice to the last address of record for the presumption to attach). This presumption of regularity in the administrative process may be rebutted by "clear evidence to the contrary." Schoolman v. West, 12 Vet. App. 307, 310 (1999). A statement of an appellant, standing alone, is not sufficient to rebut the presumption of regularity in RO operations. Thus, the appellant's assertion that she never received notice of the June 1980 P&T rating, alone, can not and does not rebut the presumption of administrative regularity. However, in this case, there is additional pertinent evidence of record, that, when viewed in conjunction with the appellant's assertions, provides clear evidence to the contrary sufficient to rebut the presumption of administrative regularity. More specifically, the RO's erroneous assignment of a delimiting date of August 12, 1979 creates doubt as to whether the RO computer-generated letter was ever sent to the appellant in June/July 1980, notifying her of the P&T rating, particularly since the delimiting date of August 12, 1979 was not changed after the P&T rating was issued. And, most significantly, the file contains a document generated by the RO in October 2005, at the time the appellant filed her current claim on appeal, which still shows the erroneous delimiting date of August 12, 1979. Because the original, erroneously assigned delimiting date of August 12, 1979 was never changed and was, in fact, reiterated by the RO in October 2005, it is highly likely that notification of the P&T rating in 1980 was never sent, given that no additional eligibility for benefits arose as a result of that rating decision, based on the record at that time. Thus, the presumption of regularity has been rebutted, and there is a definite administrative error with regard to the appellant's delimiting date. There is no evidence in the claims file prior that VA's administrative requirements were accomplished, particularly given the erroneous information provided in the March 1975 letter and the erroneous assignment of a delimiting date of August 12, 1979, that as of October 2005 had not been changed to reflect the actual date on which the veteran was found P&T. Moreover, the Board does not understand why, in the November 2006 statement of the case, the RO continues to characterize the issue as a request for an extension of the August 12, 1979 delimiting date and denies an extension of the August 12, 1979 delimiting date. Because the appellant never received notice of the actual date of commencement of the period of eligibility; because of the erroneous assignment of a delimiting date of August 12, 1979; and because of the continuous confusing and conflicting information provided to the appellant by the RO from 1973 to present; the commencement date for the appellant's eligibility to Chapter 35 DEA benefits has not yet been established and the 10-year period of eligibility has not yet begun to toll. 38 C.F.R. § 21.3046(a)(2)(ii). As such, the proper delimiting date for DEA benefits has not yet been established, and an extension of the delimiting date is warranted in this case. 38 C.F.R. § 21.3046(c)(d). Resolving all doubt in the appellant's favor, the appeal for an extension of the appellant's delimiting date for receipt of educational benefits pursuant to the Survivors' and Dependents' Educational Assistance Program under Chapter 35, Title 38, United States Code, is warranted. ORDER An extension of the appellant's delimiting date for receipt of educational benefits pursuant to the Survivors' and Dependents' Educational Assistance Program under Chapter 35, Title 38, United States Code, is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs