Citation Nr: 1328334 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 11-32 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to retroactive Dependents' Educational Assistance (DEA or Chapter 35) benefits for schooling prior to November 5, 2009. REPRESENTATION Appellant represented by: Robert Chisholm, Attorney at Law ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel INTRODUCTION The Veteran served on active duty from May 1967 to January 1968. The appellant is his daughter. The Veteran died in December 2004; a decision in June 2008 granted service connection for the cause of the Veteran's death and entitlement to DEA benefits This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied retroactive payment for the appellant's schooling prior to November 5, 2009. The issue of entitlement to an earlier effective date for the grant of service connection for schizophrenia, to include on the basis of clear and unmistakable error in the February 1968 rating decision, for accrued benefits purposes will be decided separately. FINDINGS OF FACT 1. The appellant's father, a Veteran, died in December 2004; service connection for the cause of the Veteran's death was granted in June 2008. 2. A claim for Education Benefits under 38 U.S.C. Chapter 35 was received from the appellant on November 5, 2010. CONCLUSION OF LAW The criteria for establishing entitlement to retroactive benefits under 38 U.S.C. Chapter 35 for schooling prior to November 5, 2009 have not been met. 38 U.S.C.A. §§ 5107, 5113 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 21.4131(e) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA is not applicable to cases, such as this one, in which the law is determinative of the issue on appeal. See Manning v. Principi, 16 Vet. App. 534, 542 (2002); see also Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). There is no evidence in the record that she has been provided a copy of the specific provisions ofo 38 U.S.C.A. § 5113 or of 38 C.F.R. § 4131(e), the critical law and regulation applied here. The appellant is generally considered to be entitled to notice of both the law and the evidence that will be considered in adjudicating her case. See McBurney v. Shinseki, 23 Vet. App. 136 (2009); 38 C.F.R. § 20.903(b). However, in this instance the failure to provide a copy of the relevant law is harmless error, because there is no legal basis on which the appellant could prevail. See Beverly v. Nicholson, 19 Vet. App. 394, 402-03 (2005) (holding Board error not prejudicial because there was no legal basis upon which claimant could prevail). In addition, the RO provided an explanation in the statement of the case of the reasons for its selection of the commencement date that was based on an accurate application of the relevant provisions of 38 U.S.C.A. § 5113 and 38 C.F.R. § 4131(e). The explanation should have put the appellant and her attorney on notice as to the contents of the law and regulations. Principles Governing DEA Benefits Educational assistance is available to a child of a Veteran who has a service-connected disability that is totally and permanently disabling, or a child of a deceased Veteran where the death was due to a service-connected disability. 38 U.S.C.A. § 3501; 38 C.F.R. §§ 3.807(a), 21.3021(a). Under Chapter 35, a child's period of eligibility generally begins on either the earlier of the child's eighteenth birthday or successful completion of the child's secondary schooling. 38 U.S.C.A. § 3512; 38 C.F.R. § 21.3041(a). A child's period of eligibility may; however, begin after her eighteenth birthday if the VA "first finds" that the Veteran has a total disability or grants service connection for the cause of the Veteran's death after the child's eighteenth birthday but before her twenty-sixth birthday. 38 C.F.R. § 21.3041(a)(2). The term "first finds" means either the effective date of the total disability rating, the date of the Veteran's death, or the date VA first notifies the Veteran or appellant of that rating, whichever is more advantageous to the child. 38 C.F.R. § 21.3021(s). An eligible person's application for DEA benefits under Chapter 35 will be considered as having been filed on her eligibility date, if: (1) The eligibility date is more than 1 year before the date of the initial rating decision that establishes either: that the Veteran's death is service- connected, or that the Veteran has a permanent and total disability; (2) the eligible person files her original application for benefits under Chapter 35 with VA 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 VA receives her original claim; (4) VA either received the original application on or after November 1, 2000 or received it earlier but, as of November 1, 2000, either (A) had not acted on it; or (B) had denied it in whole or in part, but the denial was subject to appeal; and (5) the eligible person would have been eligible to educational assistance under Chapter 35 if she had filed a claim on her eligibility date. 38 U.S.C.A. § 5113; 38 C.F.R. § 21.4131(e). If VA first finds the Veteran's cause of death is service connected after the child's eighteenth birthday but before her twenty-sixth birthday, the child may elect the beginning date of 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 total disability or the date after the Veteran's death, the date that VA provides notice of the relevant determination, or any date in between. Id. In such 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. 38 C.F.R. § 21.3041(a)(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 assigning a total disability rating or finding the Veteran's death to be service-connected. 38 C.F.R. § 21.3041(a)(2)(i). Background The Veteran died in December 2004. VA granted service connection for the cause of the Veteran's death in a rating decision issued in June 2008, notice of which was provided to the Veteran's surviving spouse, the appellant's mother, who was the moving party in that claim, in July 2008. The June 2008 rating decision also established basic eligibility to DEA benefits as of December 5, 2004. In October 2008 the attorney for the appellant's mother filed a Notice of Disagreement with the June 2008 rating decision which read, "She appeals the rating assigned for accrued benefits. She seeks a higher rating on the accrued benefits to include TDIU benefits and she seeks an earlier effective date on the accrued benefits as well." On November 5, 2010, the appellant electronically submitted a VA Form 22-5490, Application for Survivors' and Dependents' Educational Assistance. In the application, the appellant indicated that she was seeking retroactive DEA benefits for her law school covering the period of August 2002 through May 2005. In January 2011 the St. Louis RO sent the appellant a letter requesting additional information regarding her claim. In March 2011, the RO sent the appellant a Certificate of Eligibility indicating that she was entitled to 45 months of full time benefits. This letter also notified the appellant that she was required to elect a beginning date for her benefits; the choices provided for this beginning date were December 6, 2004 (the day after the Veteran's death), June 26, 2008 (the day before the date of the first VA decision that established entitlement to DEA benefits), or any date between those two. The appellant was informed that she must notify VA of her preferred beginning date within 60 days, otherwise her beginning date would be set as June 27, 2008. The letter further informed the appellant that VA "can pay benefits for no more than one year prior to the date we received [her] application." The appellant filed a response selecting December 6, 2004, as her beginning date. In April 2011, the RO informed her that because her selected date was more than one year prior to the date her claim was received, retroactive benefits were denied. A separate letter also sent in April 2011 changed the beginning date of eligibility to June 27, 2008, because that date would be more advantageous to the appellant, in that it provided her a longer period in which to use her benefits. Analysis There is no dispute that the appellant is eligible for and entitled to DEA benefits based on her late father's disability status. The record shows that she attended law school at between August 2002 and May 2005, the time period for which she wishes to use her DEA benefits. She was born in February 1979 and would have been ages 23 to 26 during the time period in question. The issue before the Board is whether the benefits may be applied to this schooling on a retroactive basis. The appellant's eligibility date is the date of the Veteran's death, December 2004. This is more than one year before the June 2008 rating decision that established entitlement, and the original application was received after November 1, 2000, which puts it squarely within the provisions of 38 C.F.R. § 4131(e) for an adjusted effective date. An application for DEA benefits under Chapter 35 will be considered as having been filed on the eligibility date only if the eligible person filed her original application for benefits under Chapter 35 with VA within 1 year of the initial rating decision. 38 C.F.R. § 21.4131(e). This requirement must be met for an adjusted effective date. See generally, Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision means that all of the conditions listed in the provision must be met). The claim for benefits under Chapter 35 was not received until November 2010, more than 2 years after the initial rating decision establishing entitlement. Therefore, her claim was not received within 1 year of the initial rating decision. There is no evidence or contention that the appellant, or any other eligible person, filed an application for DEA benefits prior to November 2010. The Board has reviewed the October 2008 notice of disagreement that the appellant's mother filed with regard to the June 2008 rating decision. The contents of that document cannot be read to encompass an application for DEA benefits on the appellant's behalf or even as a reference to such benefits. The appellant has not asserted that she filed an application prior to November 2010. In October 2011 the appellant's representative noted a May 2011 rating decision that granted an earlier effective date of November 2002 for the Veteran's permanent and total disability rating. The attorney interpreted the change to mean that VA should award DEA benefits for the appellant's "entire law school years and cover the costs of her bar exams." However, the changed date of total and permanent disability and an application filed within a year of the rating decision making that change do not create a separate claim for DEA benefits or otherwise serve to satisfy the requirements of 38 U.S.C.A. § 5113 and 38 C.F.R. § 4131(e). Both the statute and the regulation specify that the application must be submitted within 1 year of the "initial rating decision." 38 U.S.C.A. § 5113(b). The "initial rating decision" is that decision which established service connection for the cause of the Veteran's death or existence of a permanent and total disability. In addition, the statute and regulation regarding the eligibility period and the election of an eligibility period, 38 U.S.C.A. § 3512; 38 C.F.R. § 21.3041, both reference the date that VA "first finds" the Veteran to be permanently and totally disabled or that the Veteran's death was due to a service-connected disability. In this instance, the appellant's entitlement was established by the rating decision of June 2008 granting service connection for the cause of the Veteran's death. Subsequent decisions may have changed the earliest possible date of the entitlement, but they are subsequent rather than initial rating decisions in such instances; June 2008 is the date when VA first found eligibility based on the Veteran's disability status. Since the undisputed evidence is against the claim, reasonable doubt does not arise. The claim of entitlement to retroactive benefits under 38 U.S.C. Chapter 35 for schooling prior to November 5, 2009 must be denied. ORDER The claim of entitlement to retroactive DEA benefits for schooling prior to November 5, 2009 is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs