Citation Nr: 1327050 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 11-19 742 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an effective date earlier than March 9, 2011, for eligibility for spouse's Dependent's Educational Assistance (DEA) under Chapter 35. ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from June 1981 to April 1986 and from February 1988 to February 1989. The appellant is his spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Montgomery, Alabama, which granted basic eligibility for DEA benefits and assigned an effective date of March 9, 2011. The appellant filed a notice of disagreement with the assigned effective date and perfected the appeal. The Muskogee, Oklahoma, RO subsequently assumed jurisdiction. FINDINGS OF FACT 1. The Veteran, in a September 2004 rating determination, was granted entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU), effective July 1, 2004. 2. The appellant, the Veteran's spouse, enrolled in Gadsden State Community College on August 2006 and has completed nine semesters of college totaling 73 semester hours. 3. The RO, in a March 2011 rating determination, assigned an effective date of March 1, 2004, for the TDIU and an effective date of March 9, 2011, for the commencement of DEA benefits. 4. Based upon the Veteran having been granted a TDIU effective March 1, 2004, the appellant has the right to choose a start date for DEA benefits any time from March 1, 2004, through March 9, 2011. CONCLUSION OF LAW Resolving reasonable doubt in favor of the appellant, the criteria for an effective start date for DEA benefits any time from March 1, 2004 through March 9, 2011, to be chosen by the appellant, have been met. 38 U.S.C.A. §§ 3501, 3512 (West 2002 & Supp. 2012); 38 C.F.R. §§ 21.3021, 21.3046, 21.3047 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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. 38 U.S.C.A. § 3501(a)(1)(D)(i); 38 C.F.R. § 21.3021(a)(3)(i). Under 38 U.S.C.A. § 3512(b)(1)(A), eligibility for such benefits extends 10 years from the date (as determined by the Secretary of Veterans Affairs) that the person becomes an eligible person within the meaning of 38 U.S.C.A. § 3501(a)(1)(D)(i). Under the rule regarding the payment of educational assistance benefits under 38 U.S.C. Chapter 35 for a Veteran's spouse, the beginning date of eligibility for a spouse of a Veteran with a permanent and total disability evaluation effective after October 27, 1986 is the effective date of the Veteran's total and permanent rating, the date of notification, or any date between these two dates which is chosen by the eligible spouse. 38 U.S.C.A. § 3512(b)(1); 38 C.F.R. § 21.3046(a). A review of the record reveals that the Veteran, in a September 2004 rating determination, was granted a TDIU, effective July 1, 2004. The Veteran was awarded a TDIU at that time as a result of his service-connected disabilities being found to be severe enough to support that his disabilities precluded gainful employment. However, no certificate of eligibility for DEA benefits was issued at that time. In August 2006, the appellant, the Veteran's spouse, enrolled for the Fall semester at Gadsden State Community College. Since enrollment, the appellant has completed 9 semesters of college and a total of 73 semester hours. In a March 2011 rating determination, the Montgomery RO granted service connection for cervical radiculopathy of the left upper extremity, assigning a 10 percent disability evaluation, and granted service connection for cervical radiculopathy of the right upper extremity, assigning a noncompensable disability evaluation, with effective dates of March 1, 2004 being assigned. The RO also assigned an effective date of March 1, 2004, for the TDIU. The RO further found basic eligibility for DEA had been established, assigning an effective date of March 9, 2011, the date of the rating. The RO observed that the evidence showed that the Veteran had been granted a TDIU in September 2004, with an effective date of March 1, 2004. It observed that, generally, a grant of TDIU resulted in a veteran's disabilities being considered permanent and total which warranted a grant of DEA (Chapter 35 benefits). The RO indicated that in this case, Chapter 35 benefits were not awarded because it was unclear whether the disabilities were permanent and total and would continue to preclude gainful employment at that time. The RO indicated that an authorized review of the claims folder and the Veteran's level of disability was conducted. It observed that the evidence showed that he had been continually evaluated meeting the criteria for TDIU since March 1, 2004. The RO noted that the Veteran had not returned to employment and the evidence of record supported that his disabilities were permanent and total and would continue to preclude employment. Therefore, entitlement to the ancillary DEA benefit was granted effective the date of the rating decision, which was the date the authorized review was conducted and the determination of permanency was made. In her June 2011 notice of disagreement, the appellant noted that the March 2011 rating determination indicated that the Veteran had been unemployable since March 1, 2004. She stated that according to all the literature she had read, she should have received a Benefits Start Date Election Letter, which would have allowed her to choose a beginning date for her benefits, but she never received the letter. She stated that she called VA to request the Benefits Start Date Election Letter in May 2011 and received a letter in June 2011 indicating that she would not be able to select her start date. The appellant indicated that everything she had read concerning the start date election and eligibility period stated that she should have the option of selecting one of the following three dates as the beginning date for benefits: (1) the effective date of the rating decision (March 1, 2004); (2) the date the veteran was notified of the rating decision (March 9, 2011); or (3) any date of her choosing between the effective date (March 1, 2004) and the notification date (March 9, 2011). She stated that she should have not been denied the option to receive a Benefits Start Date Election Letter. The Board observes that under the rule regarding the payment of educational assistance benefits under Chapter 35, Title 38, United States Code applicable to the appellant's case, noted above, the beginning date of eligibility for a spouse of a Veteran with a permanent and total disability evaluation effective after October 27, 1986 is the effective date of the Veteran's total and permanent rating, the date of notification, or any date between these two dates which is chosen by the eligible spouse. In the instant case, the Veteran has been found to be permanently and totally disabled since March 1, 2004, with the rating determination making this finding being promulgated on March 9, 2011. Consequently, the appellant's start date for eligibility for DEA benefits may be as early as March 1, 2004, or as late as March 9, 201l, or any date of her choosing in between these two dates. ORDER An effective start date for DEA benefits between March 1, 2004 and March 9, 2011, to be chosen by the appellant, is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs