Citation Nr: 1126866 Decision Date: 07/19/11 Archive Date: 07/29/11 DOCKET NO. 10-18 288A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to retroactive Dependents' Educational Assistance benefits under Chapter 35, Title 38, United States Code (DEA) for school attendance from October 1999 to June 2001. REPRESENTATION Appellant represented by: Susan Paczak, Attorney at Law ATTORNEY FOR THE BOARD S. Layton, Associate Counsel INTRODUCTION The Veteran had active service from November 1966 to November 1988. The appellant is the Veteran's son. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. FINDINGS OF FACT 1. In a January 2008 rating action, the RO granted a 100 percent disability rating for PTSD for the Veteran effective December 1, 1995, and established DEA eligibility effective December 1, 1995; the Veteran was notified of that determination on October 7, 2008. 2. The appellant, who is the Veteran's son, filed his application for DEA benefits on January 29, 2009 for retroactive reimbursement for tuition paid for his attendance at the Pittsburgh Institute of Aeronautics from October 1999 to June 2001. CONCLUSION OF LAW The requirements for a retroactive award of Dependents' Educational Assistance benefits under Chapter 35 for any period of enrollment prior to January 29, 2008, have not been met. 38 U.S.C.A. §§ 3512, 5107 (West 2002); 38 C.F.R. §§ 21.3021, 21.3046, 21.4131 (1998); 38 C.F.R. §§ 21.3046, 21.4131 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's duty-to-assist and notification obligations are codified in 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). In addition, regulations were codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). However, these changes are not applicable to claims such as the one herein at issue. In Barger v. Principi, 16 Vet. App. 132 (2002), the United States Court of Appeals for Veterans Claims (Court) held that the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (VCAA), with its expanded duties, is not applicable to cases involving the waiver of recovery of overpayment claims, pointing out that the statute at issue in such cases is found in Chapter 53, Title 38, United States Code, and that the provisions of the VCAA are relevant to a different Chapter (that is, Chapter 51). As well, the statute at issue in this matter is not found in Chapter 51 (rather, in Chapter 35). Therefore, the VCAA (and, it follows, its implementing regulations) is not applicable. The Board notes that the RO has explained to the appellant the bases for denial of the claim, and afforded him the opportunity to present information and evidence in support of the claim. Significantly, there is no indication that there is any existing evidence pertinent to the issue on appeal that has not been obtained. Analysis Under Chapter 35, Title 38, of the United States Code, DEA benefits are available for those claimants whose education would be impeded or interrupted by reasons of disability or death of a parent that is related to military service. For purposes of determining who is an "eligible person" for Chapter 35 benefits, a claimant who is the child of a veteran will be deemed eligible if the parent has died of a service- connected disability, or has a total disability permanent in nature resulting from a service- connected disability, or who died while a disability so evaluated was in existence. See 38 U.S.C.A. §§ 3500, 3501(a)(1)(A) (West 2002). See also 38 C.F.R. §§ 21.3021(a)-(b) (2010). The commencement date for an eligible child to use DEA benefits generally is his/her 18th birthday or the date of his/her successful completion of secondary schooling, whichever is the earlier date, and the period of eligibility continues until age 26. 38 U.S.C.A. § 3512(a) (West 2002); 38 C.F.R. § 21.3041(a) (2010). During the time period of eligibility, the child is entitled to educational assistance not to exceed 45 months, or the equivalent thereof in part- time training. 38 C.F.R. §§ 21.3020(b), 21.3044(a) (2010). The applicable regulations further provide that an individual must file a formal claim for educational assistance for pursuit of a program of education. 38 C.F.R. § 21.1030 (2010). As a general matter, the date of claim is considered that on which a valid claim or application is considered to have been filed with VA, based upon either the date of a formal claim received at VA, or if an informal claim has been filed, and a formal claim is then received within one-year of the date VA requested it, the date VA received the informal claim will be determinative. 38 C.F.R. § 21.1029(b) (2010). The assignment of an effective date for Chapter 35 educational assistance benefits shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation. 38 U.S.C.A. 5113(a) (West 2002). Additionally, the effective date for the commencing date of an award of Chapter 35 benefits will be determined based on the latest of the following dates: the beginning date of eligibility as determined by the applicable regulation (in this case, section 21.3041 pertaining to benefits for children of service members); one-year prior to the date of claim (as determined pursuant to section 21.1029, as explained above); the date certified by the educational institution; or the effective date of the course approval, or, one year before the VA receives the approval notice, whichever is later. 38 C.F.R. § 21.4131(d) (2010). When determining the commencing date of DEA benefits, VA will consider an eligible person's application as having been filed on his/her eligibility date if 1) the eligibility date is more than 1 year before the date of the initial rating decision that establishes that the Veteran has a permanent and total disability; 2) the eligible person files his or her original application for DEA benefits within 1 year of the initial rating decision; 3) the eligible person claims educational assistance for pursuit of an approved program of education for a period that is more than 1 year before the date that VA receives his or her original claim; 4) VA received the original application on or after November 1, 2000; and 5) the eligible person would have been eligible to educational assistance under 38 U.S.C. chapter 35 if he or she had filed a claim on his or her eligibility date. See 38 C.F.R. § 21.4135(d) (2010); see also 38 U.S.C.A. § 5113 (b)(2) (A)-(C) (West 2002). The appellant's date of birth is shown to have been June [redacted], 1978. He became 18 years of age on June [redacted], 1996. On December 5, 1988, the Veteran submitted an application to reopen a previously denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD). In April 1997, the RO established service connection for PTSD and assigned a 10 percent disability rating effective December 5, 1988. The Veteran appealed this rating, and in a January 1999 decision, the RO increased this disability rating to 50 percent, effective February 10, 1997. The Veteran continued his appeal, and eventually in January 2008, the RO granted a 70 percent disability rating for PTSD, effective December 5, 1988, and a 100 percent disability rating for PTSD, effective December 1, 1995. In the January 2008 decision, the RO also established basic eligibility to DEA from December 1, 1995. The appellant filled out a VAF 22-5490 (application for DEA), which he signed on January 22, 2009 and submitted to the VA on January 29, 2009, as per the VA's date stamp. In the application, he indicated that he had attended the University of Pittsburgh from August 1997 to May 1999 and the Pittsburgh Institute of Aeronautics from October 1999 to June 2001. The Board notes that in the application, the appellant specified that he was seeking retroactive benefits only for the training he received at the Pittsburgh Institute of Aeronautics. On June [redacted], 2004, the appellant turned 26 years old. Prior to June 3, 1999, the commencing date of an award of educational assistance benefits could not begin earlier than one year prior to the date of receipt of the application or enrollment certification, whichever was later. The appellant's claim was received on January 29, 2009; there has been no enrollment certification submitted. Therefore, the earliest date that an award of educational assistance benefits could commence under the regulations in effect prior to June 3, 1999, is January 29, 2008, the date one year prior to the date of receipt of the appellant's claim for benefits. Similarly, under the regulations in effect after June 3, 1999, the significant date in determining the commencing date of the appellant's Chapter 35 award is the date one year prior to the date of the receipt of his claim. Based on the above, under either the old or new criteria, the proper commencing date for the appellant's award of Chapter 35 educational assistance benefits is January 29, 2008 at the earliest. Therefore, it is clear that Chapter 35 educational assistance benefits are not payable for any period prior thereto. The Court has held that a claimant of Chapter 35 educational benefits is not entitled to retroactive benefits if his or her education was not impeded or interrupted by the VA's delay in granting service connection for his or her father's death. See Erspamer v. Brown, 9 Vet. App. 507, 509 (1996). Although the instant case involves a total and permanent disability rating, and not service-connection for death, the Board finds the holding controlling in either situation. The Court in Erspamer remarked that Chapter 35 benefits were instituted to provide dependents educational opportunities which would otherwise be impeded or interrupted by reason of the disability or death of a parent from a disease incurred in service, and to ensure that such dependents were aided in attaining the educational status which they might have aspired to and obtained if the parent had not died. Id. at 509. There is nothing in the record to indicate that the appellant's education has been impeded or interrupted by any reliance upon any action of the VA in regard to the Veteran's claim for total and permanent disability. Thus, while the Board is sympathetic to the appellant's arguments, the Board notes that similar arguments were clearly rejected by the Court in Erspamer. In the present case, the appellant's application for Chapter 35 educational assistance benefits was received in January 2009. For the sake of argument, without taking into consideration the age limitations (18 years to 26 years), he theoretically would have been entitled to receive retroactive payment of Chapter 35 benefits, effective January 2008, which was one-year prior to the date of the receipt of the application for such benefits as required under 38 C.F.R. § 21.4131. The appellant had already completed the education pursued from October 1999 to June 2001. Thus, he did not complete the education in question within the one-year period prior to the receipt of his application. The Board is sympathetic to the appellant's arguments. His father, the Veteran, was ultimately found eligible for Chapter 35 benefits, effective December 1995, but was notified of the decision in October 2008; and therefore, the appellant could likely not have sent the required application any earlier than October 2008. The Board notes that similar arguments were clearly rejected by the Court in Erspamer. The Court held that there was simply no legal basis to award educational assistance benefits many years before the period of eligibility, and that to do otherwise would conflict with the express intent of Chapter 35. There is no basis under law, regulation, or case law to grant the appellant's claim to Chapter 35 benefits prior to January 2008. Thus, his appeal for entitlement to the retroactive award and payment of Dependents' Educational Assistance benefits under Chapter 35, Title 38, United States Code for the pursuit of education for the period from October 1999 to June 2001, must be denied based on the law, and not on the facts of the case, based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to the retroactive award and payment of educational benefits under Chapter 35, Title 38, United States Code for the appellant's pursuit of education for the period from October 1999 to June 2001, is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs