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