Citation Nr: 1330087	
Decision Date: 09/19/13    Archive Date: 09/25/13

DOCKET NO.  10-18 397A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to retroactive award and payment of educational assistance benefits under 38 U.S.C.A. Chapter 35, Survivors'and Dependents' Educational Assistance (DEA), for the appellant's pursuit of education for the period from August 1998 to August 2004.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Debbie A. Breitbeil, Counsel


INTRODUCTION

The Veteran served on active duty from March 1967 to March 1969.  The appellant is the Veteran's daughter. 

This case comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied the appellant's claim of entitlement to DEA benefits under Chapter 35, Title 38, United States Code.  She filed a notice of disagreement with the decision in May 2009, and after a statement of the case was issued to her in March 2010, she perfected her appeal to the Board with the filing of a substantive appeal in May 2010.  

In June 2011, the appellant appeared at the RO and testified at a videoconference hearing conducted by an Acting Veterans Law Judge (AVLJ) sitting in Washington, DC.  Then, upon the departure of the AVLJ from the Board, the appellant was given an opportunity for another hearing before a Veterans Law Judge who would decide her claim.  The case was remanded to the RO in March 2012 to determine her wishes in that regard.  Then, in March 2013, she appeared at the Columbia, South Carolina RO and testified at a hearing before the undersigned.  Transcripts of both hearings have been associated with the claims file.  



FINDINGS OF FACT

1.  In an August 1997 rating decision, the RO determined that the Veteran's service-connected posttraumatic stress disorder was permanently and totally disabling, and on that basis established basic eligibility to Chapter 35 DEA benefits, effective August 9, 1997; notification of the decision was issued on August 25, 1997.

2.  The appellant filed a claim for Chapter 35 DEA benefits in December 2008 and followed up with an on-line application in February 2009, many years after her 31st birthday in November 2003, and she seeks reimbursement for expenditures in pursuit of education for the period from August 1998 to August 2004.  


CONCLUSION OF LAW

Retroactive award and payment of DEA benefits under 38 U.S.C.A. Chapter 35 is not warranted, as such benefits may only be paid for one year prior to her application originally filed in December 2008 and during this time period she was years past her 31st birthday.  38 U.S.C.A. §§ 3501, 3512, 3513 (West 2002 & Supp. 2012); 38 C.F.R. §§ 21.1029, 21.1030, 21.3021, 21.3130, 21.3040, 21.3041, 21.4131 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.  Regulations relating to notice and assistance, specific to education benefits, are found at 38 C.F.R. § 21.1031, 21.1032.

In connection with the claim on appeal, the appellant has been notified of the reasons for the denial of the claim, and has been afforded the opportunity to present evidence and argument with respect to the claim, to include at two Board hearings in June 2011 and March 2013.  The Board finds that these actions are sufficient to satisfy any duties to notify and assist that are owed the appellant.  In any case, as will be explained below, this claim lacks legal merit.  As the law, and not the facts, is dispositive of the claim, the duties to notify and assist imposed by the VCAA are not applicable.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see also Manning v. Principi, 16 Vet. App. 534, 542-543 (2002) (the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter).  

Facts and Analysis

Basic eligibility for Chapter 35 benefits is established in one of several ways, including being the child of a Veteran who has a total and permanent disability rating from a service-connected disability.  38 U.S.C.A. § 3501(a)(1)(A); 38 C.F.R. § 21.3021.  The record reflects that the appellant is the Veteran's child, and that in an August 1997 rating decision, the RO determined that the Veteran had a total and permanent disability rating from service-connected posttraumatic stress disorder, effective August 7, 1997; notice of that decision was issued on August 25, 1997.  Thus, basic eligibility for Chapter 35 benefits was established for the appellant by the RO, but there is no evidence that she utilized these benefits.  See 38 U.S.C.A. § 3501; 38 C.F.R. § 21.3021(a)(1)(i).  

The period of eligibility for a child of a veteran generally extends from the child's eighteenth birthday and ends on the child's twenty-sixth birthday.  38 U.S.C.A. § 3512(a); 38 C.F.R. § 21.3041.  Where the effective date of the permanent and total disability rating occurs between the child's 18th and 26th birthdays, an extension of the eligibility period may be granted, up to a period of eight years.  38 C.F.R. 21.3041(a)(2)(ii).  The beginning date of eligibility will be the effective date of the rating or the date of notification to the Veteran from whom the child derives eligibility, whichever is more advantageous to the eligible child.  During that eight year period (ninety-six months), the child is entitled to educational assistance not to exceed 45 months, or the equivalent thereof in part-time training.  38 U.S.C.A. § 3511(a); 38 C.F.R. §§ 21.3020(b), 21.3044(a).  Beyond that eight year period, a further extension may be granted, if an eligible child suspends pursuit of his or her program due to conditions that VA determined were beyond the child's control.  38 C.F.R. 21.3041(g)(1).  Notwithstanding these potential extension provisions, no child is eligible for educational assistance beyond his or her 31st birthday, except that if the child's 31st birthday occurs during a term (quarter or semester), VA may extend the period of eligibility to the end of that term.  38 U.S.C.A. § 3512(c); 38 C.F.R. §§ 21.3040(d), 21.3041(g).

A copy of a birth certificate of record indicates that the appellant was born on November [redacted], 1972.  Accordingly, she was 24 years of age on August 25, 1997, which is the date of notification to the Veteran that basic eligibility to Chapter 35 DEA benefits was established (such date was slightly more advantageous to the appellant than the effective date of the rating on August 9, 1997).  Therefore, the eligibility period was applicable for a period of 8 years from August 25, 1997, making the delimiting date in this case on August 25, 2005.  The record further shows that the appellant turned 31 years of age on November [redacted], 2003.  As previously noted, there is a general bar on extensions of delimiting dates beyond 31 years of age, with the only exception being that if the child's 31st birthday occurs during a term (quarter or semester), VA may extend the period of eligibility to the end of that term.  38 U.S.C.A. § 3512(c); 38 C.F.R. §§ 21.3040(d), 21.3041(g).  Accordingly, education benefits for a program of education extending well beyond the appellant's 31st birthday would largely be prohibited by law.  Nonetheless, given the other facts in this case, extension of the period of eligibility beyond the appellant's 31st birthday has no practical effect upon the outcome in the appellant's current appeal.  

In this case, the appellant testified that she initially filed an application for Chapter 35 DEA benefits in either December 2008 or January 2009.  Records show that in a December 2008 letter to the appellant, the RO notified her that it had received her claim for Chapter 35 DEA benefits but that her Social Security number was needed in order to process her claim.  A copy of her Social Security card was received later that month.  Then, it appears that in February 2009 the VA electronically received another DEA claim, VA Form 22-5490, via VONAPP (Veterans On-line Application Program).  On that VA form, she indicates that she had received a previous college education from August 1998 to August 2004 and that her current educational plan was a doctorate degree.  Also in February 2009, enrollment certification forms were received from a university official, indicating that the appellant's enrollment began in January 2008 and was continuing .  It bears noting that in connection with this appeal, the appellant has made clear in statements and testimony that her application for Chapter 35 benefits was in the nature of a request for reimbursement for the expenditures she made in pursuit of a program of education for the period of August 1998 to August 2004, and she has submitted evidence from an educational institution to verify her status as a student enrolled at an undergraduate college throughout that time period.  She makes no assertions regarding a request for educational assistance for her doctoral program begun in January 2008.  In any case, by January 2008 she was many years beyond the age of 31 and also past the August 25, 2005 delimiting date, thereby making her ineligible for DEA benefits.  

In an April 2009 letter, the RO informed the appellant that VA could not pay her DEA benefits after the ending date of her eligibility on August 25, 2005.  The appellant, however, contended in a May 2010 statement that she was enrolled in school and was seeking "tuition and back pay entitlements under Chapter 35" for a period of time that "falls squarely within the August 1997 to August 2005 eligibility dates."  At her hearings, she testified that even though she was enrolled in an education program during the eight year eligibility period, she did not submit her application for Chapter 35 DEA benefits in a more timely manner because she was unaware that the Veteran had been deemed permanently and totally disabled and that the "clock [had] started the date he became 100 percent permanently disabled."  

While the appellant was basically eligible to claim Chapter 35 DEA benefits beginning August 25, 1997, VA is required to set a commencing date for the award of the actual payment of such benefits.  In that regard, in order to receive benefits under Chapter 35, an appellant must file an application as prescribed by the Secretary.  38 U.S.C.A. § 3513; 38 C.F.R. §§ 21.1030, 21.3030. 

The general rule with respect to the commencing date for the payment of Chapter 35 benefits (where a person eligible to receive educational assistance under Chapter 35 enters into training, and the award is the first award of educational assistance for the program of education the eligible person is pursuing) is that the commencing date can be no earlier than one year prior to the date of the claim for benefits.  38 C.F.R. §§ 21.3130(e), 21.4131(d).  The date of claim is the date on which a valid claim or application for educational assistance is considered to have been filed with VA, for purposes of determining the commencing date of an award of that educational assistance.  38 C.F.R. § 21.1029(b). 

A claim is a formal claim when the claimant or his authorized representative files the claim with VA, and (1) the claim is a claim for (i) educational assistance; (ii) an increase in educational assistance; or (iii) an extension of the eligibility period for receiving educational assistance; and (2) if there is a form (either paper or electronic) prescribed under this part, the claim is filed on that form.  38 C.F.R. § 21.1029(d).  Pursuant to 38 C.F.R. § 21.1029(e)(1), if a form (either paper or electronic) has been prescribed under this part to use in claiming the benefit sought, the term informal claim means (i) any communication from an individual, or from an authorized representative or a Member of Congress on that individual's behalf that indicates a desire on the part of the individual to claim or to apply for VA-administered educational assistance; or (ii) a claim from an individual or from an authorized representative on that individual's behalf for a benefit described in paragraph (d)(1)(i) of this section that is filed in a document other than in the prescribed form. 

As noted above, under the current regulations governing Chapter 35 benefits, VA cannot pay for any education/training which took place more than one year prior to the date the appellant's claim for such benefits was received.  In the instant case, the appellant's claim for Chapter 35 benefits was received in December 2008 followed by an on-line application (VA Form 22-5490) in February 2009.  The appellant testified that she initially applied for Chapter 35 benefits in 1991; however, this is not substantiated by the record nor was eligibility for Chapter 35 DEA benefits even established at that time.  The appellant also testified that her second application for Chapter 35 benefits was filed in December 2008 or January 2009.  Indeed, as earlier noted, it appears from a copy of a letter to the appellant in December 2008, in which the RO informed her that it had received her DEA claim but required her Social Security number in order to process her claim, that a claim was filed in December 2008, which was followed up with an on-line application in February 2009.  Thus, based on VA regulations and the date of claim, payment for educational expenses under Chapter 35 may not be made prior to December 2007 at the earliest.    

The Board acknowledges that, under an exception to the aforementioned rule, retroactive payment as far back as the effective date of the Veteran's rating decision may be made.  See 38 C.F.R. § 21.4131(e).  However, the appellant's application for DEA benefits cannot be considered to have been filed on her eligibility date in August 1997, as provided under this exception, because she does not meet the requirements under the regulation.  For example, among other things, the appellant's eligibility date was not more than one year before the date of the initial rating decision that established that the Veteran had a permanent and total disability rating, nor did she file her original application within one year of the initial rating decision.  38 C.F.R. § 21.4131(e)(1), (2).  

The Board has considered the appellant's assertions regarding her entitlement to retroactive Chapter 35 DEA benefits.  Not only was the appellant's application for benefits received many years beyond her 31st birthday in November 2003, when her period of eligibility is mandated by law to end, but the law does not provide for the payment of educational benefits any earlier than one year prior to the date of receipt of the claim for benefits, or prior to December 2007 at the earliest in this case.  

The Board finds it may be instructive at this juncture to address the appellant's assertions that she was not aware or made aware of her eligibility for Chapter 35 DEA benefits when the Veteran was determined to be permanently and totally disabled in August 1997.  It seems quite likely that if she had been informed in a timely manner of her eligibility and the filing deadlines for Chapter 35 benefits, she would have taken action to submit an application and would have received such benefits.  Instead, by her current claim she is attempting to obtain retroactively the educational expenses she incurred when she pursued a program of education without the benefit of any VA assistance.  The Board notes that courts have held that such contentions as the appellant's regarding her lack of knowledge of her Chapter 35 eligibility are no exception to VA regulations.  See Morris v. Derwinski, 1 Vet. App. 260 (1991), citing Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-85 (1947).  As noted by the United States Court of Appeals for Veterans Claims (Court), the United States Supreme Court has recognized that persons dealing with the United States government are charged with knowledge of federal statutes and lawfully promulgated agency regulations, regardless of actual knowledge or hardship resulting from innocent ignorance.  See Morris, 1 Vet. App. at 260.  

Moreover, there is no statutory or regulatory provision for any exceptions to the filing requirements that apply to this case.  Indeed, regulations specifically applicable to Chapter 35 provide that VA's failure to give a claimant or potential claimant any form or information concerning the right to file a claim, or to furnish notice of the time limit for the filing of a claim, will not extend the time for filing.  38 C.F.R. § 21.1033(a).  Consequently, Chapter 35 benefits cannot be awarded based on VA's failure to apprise the appellant of information regarding her eligibility, and an argument founded upon unawareness of her eligibility or entitlement will not succeed.  

The Board is bound by applicable law and regulations when determining a claim for VA benefits.  Here, the regulatory criteria governing eligibility for DEA benefits under Chapter 35 are clear and specific, and the Board is bound by them.  Pursuant to these criteria, there is no basis upon which to grant the appellant a retroactive award and payment of educational assistance benefits under Chapter 35, as requested for the period from August 1998 to August 2004.  Accordingly, the Board must deny the appellant's claim as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).  Where the law, rather than the facts, is dispositive, the benefit of the doubt provisions as set forth in 38 U.S.C.A. § 5107(b) are not for application. 


ORDER

A retroactive award and payment of educational assistance benefits under 38 U.S.C.A. Chapter 35, Survivors'and Dependents' Educational Assistance, for the appellant's pursuit of education for the period from August 1998 to August 2004 is denied.



____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs