Citation Nr: 0814380 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 05-38 926A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Eligibility for retroactive Department of Veterans Affairs Dependents' Educational Assistance benefits under the provisions of 38 U.S.C.A. Chapter 35. ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The veteran had active service from April 1973 to March 1979. The appellant is the veteran's daughter. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the Muskogee, Oklahoma, Regional Office (RO) which, in pertinent part, determined that the appellant was not eligible for retroactive Department of Veterans Affairs (VA) Dependents' Educational Assistance (DEA) benefits under the provisions of 38 U.S.C.A. Chapter 35. FINDINGS OF FACT 1. A June 11, 2003, rating decision established the veteran's basic eligibility for VA DEA benefits under the provisions of 38 U.S.C.A. Chapter 35 and effectuated the award as of August 31, 2001. The veteran was informed in writing of the award on June 24, 2003. 2. The appellant's eligibility date for VA DEA benefits is August 31, 2001. 3. The appellant's application for retroactive VA DEA benefits under the provisions of 38 U.S.C.A. Chapter 35 was received by the VA on June 24, 2004. CONCLUSION OF LAW The appellant's eligibility for retroactive VA DEA benefits under the provisions of Chapter 35 has been established. 38 U.S.C.A. § 5113(b) (West 2002 & Supp. 2007); 38 C.F.R. §§ 21.1033, 21.3030 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held, in part, that a Veterans Claims Assistance Act of 2000 (VCAA) notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable RO decision on a claim for VA benefits. In reviewing the appellant's claim, the Board observes that the appellant has not been issued a VCAA notice. Notwithstanding this fact, the Board finds that appellate review of the appellant's claim would not constitute prejudicial error given the favorable resolution below. II. Historical Review A June 11, 2003, rating decision granted a total rating for compensation purposes based on individual unemployability; established the veteran's basic eligibility for VA DEA benefits under the provisions of 38 U.S.C.A. Chapter 35; and effectuated the award as of August 31, 2001. The veteran was informed in writing of the award on June 24, 2003. In June 2004, the appellant submitted an Application for Survivors' and Dependents' Educational Assistance (VA Form 22-5490) for attendance at the University of San Francisco and two Enrollment Certifications (VA Form 22-1999), for the periods of January 22, 2001, to May, 17, 2001; July 2, 2001, to August 10, 2001; and August 23, 2001, to December 13, 2001. The appellant's application and supporting documentation was received by VA on June 24, 2004. The RO subsequently requested that the appellant choose a beginning date of either August 31, 2001, or July 23, 2003, or any date in between, noting that she was eligible to receive benefits for only eight years after the date she chose. In July 2004, the appellant elected to have August 31, 2001, as her eligibility date for VA DEA purposes. However, in July 2004, the RO determined that the appellant was not eligible for retroactive VA DEA benefits under the provisions of 38 U.S.C.A. Chapter 35 on the basis that her claim was not received within one year of the June 11, 2003 rating decision. III. Retroactive VA DEA Benefits The provisions of 38 U.S.C.A. § 5113(b) (West 2002 & Supp. 2007) direct that: (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 educational 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 subparagraphs (A), (B), (D), and (E) of section 3501(a)(1) of this title. (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 the death of the person from whom such eligibility is derived or (ii) the existence of the service connected total disability permanent in nature (or, in the case of a person made eligible under section 3501(a)(1)(E), the total disability permanent in nature incurred or aggravated in the line of duty in the active military, naval, or air service) of the person from whom such eligibility is derived, as the case may be. The plain meaning of this language is that if the VA establishes basic eligibility for VA DEA benefits under Chapter 35 and the veteran's child files an application for DEA benefits within one year after the issuance of the award, the DEA application may be considered as having been filed on the child's eligibility date. This provision applies if the eligibility date is more than one year before the date of the RO decision that established basic eligibility for VA DEA benefits under Chapter 35. As noted, the RO determined denied eligibility for retroactive VA DEA benefits under the provisions of 38 U.S.C.A. Chapter 35 on the basis that her claim was not received within one year of the June 11, 2003 rating decision. However, although the provisions of 38 U.S.C.A. § 5113(b) do provide that the original application for educational assistance must be submitted within one year of the date of the rating decision, the provisions of 38 C.F.R. §§ 21.1033 and 21.3030 (2007) provide further guidance for computing time limits for any action of a beneficiary claiming DEA benefits. Specifically, in computing the time limit for any action required of a claimant or beneficiary, including the filing of claims, the first day of the specified period will be excluded and the last day will be included. The first day of the specified period will be the date of the letter of notification to the claimant or beneficiary for purposes of computing time limits. 38 C.F.R. §§ 21.1033, 21.3030 (2007). In this case, the appellant's claim for retroactive VA DEA benefits was received by VA on June 24, 2004, a date within one year of the June 24, 2003, letter of notification to the veteran. 38 C.F.R. §§ 21.1033, 21.3030 (2007). Thus, the Board finds that the provisions of 38 U.S.C.A. § 5113(b) are for application. The Board acknowledges that the provisions of 38 U.S.C.A. § 5113(b) provide for a retroactive award at the discretion of the Secretary of the VA. Friedsam v. Nicholson, 19 Vet. App. 555, 562-563 (2006). However, the Board concludes that the record contains no factors which would weigh against the statute's application in the instant appeal. Therefore, the appellant is eligible for retroactive VA DEA benefits under the provisions of Chapter 35. ORDER Eligibility for retroactive VA DEA benefits under the provisions of 38 U.S.C.A. Chapter 35 is established. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs