Citation Nr: 1326675 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-18 449A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a revised beginning date of September 8, 2009 for Dependents' Educational Assistance (DEA) benefits under the provisions of Chapter 35, Title 38, United States Code. ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from March 1, 1976 to February 1979 and from January 1981 to November 1987. The appellant in this case is the Veteran's daughter. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2010 decision in which the RO in Atlanta, Georgia notified the appellant that she was entitled to Chapter 35 DEA benefits from August 6, 2010 to August 6, 2018. In March 2011, the appellant filed a notice of disagreement (NOD) as to the beginning date of her entitlement. The RO issued a statement of the case (SOC) in May 2011, and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in July 2011. FINDINGS OF FACT 1. By rating decision dated August 6, 2010, the Veteran was found to have a total disability permanent in nature resulting from service-connected disability, effective from September 8, 2009. 2. The appellant credibly argues that she responded within sixty days of the August 2010 letter requesting that she elect a beginning date for Chapter 35 DEA benefits sometime between September 2009 and August 2010. CONCLUSION OF LAW The requirements for a beginning eligibility date of September 8, 2009 for Chapter 35 DEA benefits are met. 38 U.S.C.A. §§ 3500, 3501, 3512 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.807, 21.3020, 21.3021. 21.3041 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Given the Board's favorable disposition of the claim of entitlement an earlier beginning date for eligibility for Chapter 35, DEA benefits, the Board finds that failure to discuss VCAA compliance will result in harmless error to the appellant. Analysis Educational assistance is available to a child of a veteran who has a total disability permanent in nature resulting from a service-connected disability. 38 U.S.C.A. § 3501; 38 C.F.R. §§ 3.807(a)(2), 21.3021(a)(1). For purposes of Chapter 35, 'child' means the son or daughter of a veteran who meets the requirements of 38 C.F.R. § 3.57, except as to age and marital status. 38 C.F.R. §§ 3.807(d)(1), 21.3021(b). A total disability permanent in nature, or 'P&T' disability, refers to a service-connected disability rating determined by VA to be total for the purposes of VA disability compensation where the impairment is reasonably certain to continue throughout the life of the disabled veteran. 38 C.F.R. § 21.3021(p). The effective date of a P&T rating means the date from which VA considers that the veteran's P&T disability commenced for purposes of VA benefits, as determined by the initial rating decision. 38 C.F.R. § 21.3021(r). Under Chapter 35, a child's period of eligibility generally begins on the child's eighteenth birthday, or upon successful completion of the child's secondary schooling, whichever first occurs. 38 U.S.C.A. § 3512; 38 C.F.R. § 21.3041(a). However, a child's period of eligibility may begin after her eighteenth birthday if VA first finds the veteran has a P&T disability after the child's eighteenth birthday but before her twenty-sixth birthday. 38 C.F.R. § 21.3041(a)(2). For purposes of this section, 'first finds' means the effective date of the P&T rating or the date VA first notifies the veteran of that rating, whichever is more advantageous to the child. 38 C.F.R. § 21.3021(s). If VA first finds the veteran has a P&T disability after the child's eighteenth birthday but before her twenty-sixth birthday, the child may elect the beginning date of his or her period of eligibility. 38 C.F.R. § 21.3041(a)(2)(ii). The child can elect as a beginning date the effective date of the P&T rating, the date VA notifies the veteran of the P&T rating, or any date in between. Id. In these circumstances, VA must provide written notice to the child informing her of her right to elect the beginning date of the period of eligibility. 38 C.F.R. § 21.3041(i). The written notice must identify the beginning dates the child may choose from and must contain a statement that the child must make the election within sixty days of the date of the written notice. Id. at (1). If the child does not elect a beginning date within sixty days of VA's written notice, the period of eligibility beginning date will be the date of VA's decision that the veteran has a P&T disability. Id at (2)(i). Here, the appellant argues that her Georgia State University certifying official (C.C.) submitted her election date along with her enrolment certification on September 10, 2010, well within 60 days of her August 10, 2010 notice. She additionally argues that she called the VA to ensure that her paperwork was completed as necessary, and that she was informed that she was 3 days over her 60-day election requirement and that she would need to submit a notice of disagreement. She also noted that the VA representative informed her that C.C. has requested retroactive payments for DEA from September 8, 2009. An internal VA email revealed that she contacted the VA in January 2011 and was told that she did not need to submit a notice of disagreement, and that the only thing VA "needed was her formal election." The VA representative noted that she elected September 6, 2009 as her beginning date. In response to this email, a second VA representative responded that she would need to return the election form, and that she could fax it in. There is no indication if this information was relayed to the appellant as she submitted her notice of disagreement in March 2011. The enrollment certification submitted by C.C. on September 10, 2010 includes the statement: "8/17/09-10/09/2009: Student claiming back pay for DEA benefits." While this information is not provided on the beginning date election form, it does show the appellant's intent to elect the earlier of her choices for a beginning date for DEA benefits. As such, the Board finds that a beginning date of September 8, 2009 for eligibility for DEA benefits is warranted. As this is the date her father (Veteran) was found to be permanently and totally disabled, it is the earliest date possible for her to receive benefits. ORDER Entitlement to a revised beginning date of September 8, 2009 for Dependents' Educational Assistance (DEA) benefits under the provisions of Chapter 35, Title 38, United States Code is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs