Citation Nr: 1313485 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 10-17 531 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUE Entitlement to an extension of the delimiting date for Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, of the United States Code, beyond May 16, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran served on active duty from October 1969 to October 1986. The Veteran died in August 2010. The appellant is the Veteran's surviving child. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 administrative decision which denied the benefits sought on appeal. A hearing before the undersigned was held at the RO in March 2011. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Although further delay is regrettable, the Board finds that the evidentiary record as currently constituted is insufficient to render a fair and impartial decision on the merits of the appellant's claim. Specifically, VA regulations governing Survivors' and Dependents' Educational Assistance (DEA) program were amended, effective May 28, 2008, to allow, in part, certain beneficiaries to elect the beginning date of their period of eligibility. Prior to the recent changes, the beginning date of an eligible child's period of eligibility was defined by statute, and did not allow for a claimant to elect the beginning date. However, under the Veterans' Survivor Benefits Improvements Act of 2001, (Pub. L. 107-14); effective from November 1, 2000, the eligible child is permitted to elect the beginning date of their period of eligible within prescribed guidelines. Under 38 U.S.C. § 3512(a)(3), VA is required to provide written notice to the children who are entitled to elect the beginning date of their period of eligibility. The written notice must advise eligible children of their right to chose their beginning date and inform them that the deadline to make an election is 60 days from the date of VA's written notice. See 38 C.F.R. § 21.3041(i)(1)(ii). A child whose eligibility is based, as in this case, on the veteran's permanent and total (P&T) disability may elect: the effective date of the P&T disability rating, the date of notification to the veteran of such rating, or any date in between those two dates. See 38 C.F.R. § 21.3041(a)(2)(ii). If an eligible child does not elect a beginning date within 60 days from the date of VA's written notice, the beginning date of his or her period of eligibility will default (in accordance with statutory provisions) to the date of VA's P&T rating decision. See 38 C.F.R. § 21.3041(i)(2). In this case, the appellant is the child of a veteran who was in receipt of a P&T disability. The evidence showed that the appellant was between his 18th and 26th birthdays when the Veteran was found to be permanent and totally disabled by a rating decision in May 2001; the P&T award was made effective from January 1, 1998. Notice of the rating action was mailed to the Veteran on June 19, 2001. Parenthetically, the Board notes that information from Virtual VA showed that the Veteran died in August 2010. In August 2008, the appellant submitted a claim for entitlement to Dependents' Educational Assistance (DEA) benefits (VA Form 22-5490, Application for Survivors' and Dependents' Educational Assistance), and was subsequently awarded DEA benefits in October 2008. The record shows that the delimiting date was established as of May 16, 2009; based on the date of the rating decision that awarded the Veteran P&T disability. However, the current evidence of record does not show that the appellant was ever provided with the required notification letter advising him of his options to elect the beginning date of his DEA benefits or of the time limit to do so. Thus, it is not clear how the delimiting date was established. As it applies to the facts in this case, the appellant notified VA in April 2008, that he planned to continue his education and was enrolled in college courses scheduled to begin on June 8, 2008. While it is not clear whether the appellant actually attended those classes, the basis for the establishment a delimiting date based on the date of the rating decision awarding P&T, rather than the date of notification of that rating decision, must be ascertained in order to determine whether he was entitled to an extension of DEA benefits under 38 C.F.R. § 21.3041(g)(2). Because the current evidence of record does not include a copy of the notification letter that should have been mailed to the appellant after receipt of his original application for DEA benefits in August 2008, the Board is unable to determine how the delimiting date was established. Therefore, the appeal must be remanded to ensure that all relevant records and letters are associate with the claims file. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should ensure that all of the records pertaining to the appellant's application for DEA benefits are associated with the claims file. Of particular interest, is the initial notification letter from the RO to the appellant that should have been mailed shortly after receipt of his DEA application in August 2008. 2. After the requested development has been completed, the RO should readjudicate the merits of the claim. If the benefits sought on appeal remain denied, the appellant and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ T. MAINELLI Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).