Citation Nr: 1305044	
Decision Date: 02/11/13    Archive Date: 02/21/13

DOCKET NO.  10-13 754A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Whether the appellant is entitled to a revised delimiting date for receipt of Dependents' Educational Assistance (DEA) benefits under the provisions of Chapter 35, Title 38, of the United States Code.


WITNESSES AT HEARING ON APPEAL

The Appellant and the Veteran


ATTORNEY FOR THE BOARD

D. Bredehorst


INTRODUCTION

The Veteran served on active duty from June 1965 to August 1969.  The appellant is his spouse.  She appealed to the Board of Veterans' Appeals (Board/BVA) from a decision by an Education Unit at the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

As support for her claim, she and her husband-Veteran testified at a hearing at the RO in Oakland, California, in February 2012 before the undersigned Veterans Law Judge of the Board (Travel Board hearing).

The Board subsequently, in April 2012, remanded the claim to the RO via the Appeals Management Center (AMC) for further development and consideration, including especially to obtain additional medical records supporting the claim.

The Board has advanced this appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  In a September 1999 rating decision, VA granted the Veteran a permanent and total (P&T) disability rating due to his service-connected disabilities and established basic eligibility for Chapter 35 benefits, retroactively effective as of July 28, 1999.

2.  He and the appellant married in May 2005.

3.  VA received her application for DEA (Chapter 35) benefits in April 2009.



CONCLUSION OF LAW

The criteria are met for revision of the appellant's delimiting date to May 2015 for receipt of DEA benefits under Chapter 35, Title 38, of the United States Code.  38 U.S.C.A. §§ 3501, 3512, 5107 (West 2002); 38 C.F.R. § 21.3046 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000), enhanced VA's duties to notify and assist claimants with claims for VA benefits upon receipt of a complete or substantially complete application.  The VCAA was codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126, and the implementing VA regulations were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a).

Here, though, the Board need not discuss whether there has been compliance with these duty-to-notify-and-assist obligations since the Board is granting the claim.  In other words, even were the Board to assume, for the sake of argument, the appellant has not received this notice and assistance with her claim, this would be inconsequential and, therefore, ultimately amount to no more than nonprejudicial, i.e., harmless error.  38 C.F.R. § 20.1102.  See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (wherein the U. S. Supreme Court made clear that VCAA notice and assistance errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim).  There simply is no such possibility in this instance.

Legal Criteria and Analysis

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, during a period of qualifying service.  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, of the United States Code, 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, or any date between the dates as specified by the eligible spouse.  38 U.S.C.A. § 3512(b)(1); 38 C.F.R. § 21.3046(a)(2)(iii). 

Educational assistance shall not exceed 10 years after one of the following last occurs:  (i) The date on which the Secretary first finds the spouse from whom eligibility is derived has a service-connected total disability permanent in nature; (ii) The date on which the Secretary determines the spouse from whom eligibility is derived died of a service-connected disability.  38 U.S.C.A. § 512(b)(1)(B)(i)(ii). 

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).  Also, it must be clearly established by medical evidence that such program of education was medically infeasible.  38 C.F.R. § 21.3047(a)(2)(i). 

Here, the record shows that a September 1999 rating decision established basic eligibility to DEA from July 28, 1999, based on evidence the Veteran was permanently and totally disabled.  He was notified of that decision on October 6, 1999.  Notably, he was unmarried at the time.  See the Declaration of Status of Dependents received in October 2005.

A license and certificate of marriage shows he and the appellant married in May 2005.

In April 2009, the RO received her derivative claim of entitlement to DEA benefits based on her status as a dependent spouse of the Veteran.  A letter from the RO dated that same month states that she was entitled to benefits for an approved program of education or training under the DEA program and she was given two dates to choose from as a starting date for benefits.  The first date was July 28, 1999, the date the Veteran became totally disabled, or October 3, 1999, the date of the letter informing him that he was permanently and totally disabled due to service-connected disabilities.  She also had a third option of choosing any date in between the two.  She was also informed that the ending date for using her benefits would be 10 years from the date she chose.  She disagreed with the decision and requested an extension.  See her June and August 2009 statements.


In arguing for an extension of the delimiting date, she asserts that it is warranted because she was the caretaker of her son, who was born with a heart defect that resultantly had to be treated surgically shortly after his birth, but also at the same time a caretaker of her husband, as well, who as mentioned was totally disabled.  In essence, then, her argument is that she was prevented from applying for and completing her Chapter 35 benefits because of her son's and husband's disabilities that she constantly had to attend to.

In deciding her appeal, the Board need not decide the matter in view of the applicable regulations, which would entail considering 38 C.F.R. § 21.3047(a) to determine whether she was genuinely precluded from completing a program of education because of a qualifying physical or mental disability.  Rather, there is applicable legal precedent issued by the U. S. Court of Appeals for Veterans Claims (Court/CAVC) providing a wholly different ground upon which to consider, and duly grant, a later delimiting date for the award of DEA benefits. 

In Cypert v. Peake, 22 Vet. App. 307 (2008), the Court considered the case of an appellant-spouse similarly seeking DEA benefits, who had married the Veteran more than 10 years after the date that he was notified of his award of a permanent and total disability rating.  Under the applicable regulations, the appellant's application would have been untimely as the window within which a dependent spouse may elect use of DEA benefits is no more than 10 years from the date of notification to the Veteran of his permanent and total disability rating.  See 38 C.F.R. § 21.3046(a).  Although acknowledging the Secretary has discretion to determine the beginning of the 10-year delimiting period, the Court found that his discretion is not unfettered.  Rather, it found that, "by the plain language of 38 U.S.C.A. § 3501(a)(1)(D)(i), a person who is a spouse of a person who has a service-connected total and permanent disability is an eligible person, and by the plain language of 38 U.S.C.A. § 3512(b)(1)(A) anyone made eligible by section 3501(a)(1)(D) may be afforded educational benefits 'during the 10-year period beginning on the date (as determined by the Secretary) the person becomes an eligible person within the meaning of section ... 3501(a)(1)(D).'" (Emphasis in original.)  Id., at 309.  Interpreting these statutory provisions, the Court held that, pursuant to section 3512(b)(1)(A), the appellant-spouse became an "eligible person" when she married the Veteran, thus triggering the 10-year eligibility period within which to be awarded DEA benefits.  Id., at 309-10.  As a result, the Court determined that the appellant's DEA application was not untimely and that she had a 10-year window from the date of the parties' marriage within which to utilize DEA benefits. 

The holding in Cypert, therefore, is logically applied to this case and requires the revision of the beginning date of the appellant's 10-year eligibility period and, consequently, a change in the delimiting date.  While the factual background of this case is not exactly identical to that in the Cypert case, inasmuch as here the appellant and the Veteran were actually married within the 10-year delimiting period, the principles of this precedent case are still controlling.  Essentially, as a result of the Court's holding in Cypert, the beginning date of a dependent spouse's eligibility to DEA benefits is now determined under the statute to be the date of marriage to the Veteran, and not according to the provisions set forth by regulation, so long as the date of marriage is after the notification of VA finding the Veteran to be permanently and totally disabled.  Accordingly, the beginning date of the appellant's eligibility for DEA benefits is in May 2005, the date when she and the Veteran were married and when she resultantly became an eligible person under 38 U.S.C.A. § 3512(b)(1)(A).  As a result of this change in her beginning date of eligibility, her 10-year eligibility period actually expires in May 2015, rather than on October 3, 2009 as previously determined (the period was actually extended slightly to October 13, 2009, to pay through the end of her term she was then currently enrolled in when her delimiting date occurred).  Consequently, she is still within her eligibility period to receive DEA benefits. 

The Board therefore finds that she is entitled to a revised delimiting date of in May 2015, i.e., 10 years from the date of her marriage to the Veteran, within which to utilize and complete her DEA benefits for an approved program of education. 


ORDER

A revised delimiting date of in May 2015 for the award of DEA benefits under Title 38 of the U.S. Code is granted.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs