Citation Nr: 1333020	
Decision Date: 10/22/13    Archive Date: 10/24/13

DOCKET NO.  10-18 288A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUE

Entitlement to retroactive Dependents' Educational Assistance benefits under Chapter 35, Title 38, United States Code (DEA).


REPRESENTATION

Appellant represented by:	Susan Paczak, Attorney at Law


ATTORNEY FOR THE BOARD

S. Layton, Counsel



INTRODUCTION

The Veteran had active service from November 1966 to November 1988.  The appellant is the Veteran's son.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York.

In July 2011, the Board denied the claim.  The appellant appealed the July 2011 Board decision to the United States Court of Appeals for Veterans Claims (Court).  In March 2012, the Court granted the joint motion for remand filed by representatives for both parties, vacating the Board's decision, and remanding the claim to the Board for further proceedings consistent with the joint motion.


FINDINGS OF FACT

1.  The appellant, who is the Veteran's son, was born on June [redacted], 1978, became 18 years of age on June [redacted], 1996, and became 26 years of age on June [redacted], 2004.

2.  In a January 2008 rating action, the RO granted a 100 percent disability rating for PTSD for the Veteran effective December 1, 1995, and established DEA eligibility effective December 1, 1995; the Veteran was notified of that determination on October 7, 2008.

3.  The appellant filed his application for DEA benefits on January 29, 2009, within one year of the date of notification to the Veteran of his son's eligibility.

4.  The appellant attended the Pittsburgh Institute of Aeronautics from October 1999 to June 2001.


CONCLUSION OF LAW

The requirements for eligibility for retroactive Dependents' Educational Assistance benefits have been met.  38 U.S.C.A. §§ 3500, 3501, 5113 (West 2002); 38 C.F.R. §§ 3.807, 21.3020, 21.3021, 21.4131. (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VCAA

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 (West 2002 & Supp. 2013)) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013).

Given the favorable disposition of the claim for entitlement to DEA benefits, the Board finds that all notification and development actions needed to fairly adjudicate the claim have been accomplished.

Analysis

Under Chapter 35, Title 38, of the United States Code, DEA benefits are available for those claimants whose education would be impeded or interrupted by reasons of disability or death of a parent that is related to military service.  For purposes of determining who is an "eligible person" for Chapter 35 benefits, a claimant who is the child of a veteran will be deemed eligible if the parent has died of a service- connected disability, or has a total disability permanent in nature resulting from a service- connected disability, or who died while a disability so evaluated was in existence.  See 38 U.S.C.A. §§ 3500, 3501(a)(1)(A) (West 2002).  See also 38 C.F.R. §§ 21.3021(a)-(b) (2013).

The commencement date for an eligible child to use DEA benefits generally is his/her 18th birthday or the date of his/her successful completion of secondary schooling, whichever is the earlier date, and the period of eligibility continues until age 26.  38 U.S.C.A. § 3512(a) (West 2002); 38 C.F.R. § 21.3041(a) (2013).  During the time period of eligibility, the child is entitled to educational assistance not to exceed 45 months, or the equivalent thereof in part- time training.  38 C.F.R. §§ 21.3020(b), 21.3044(a) (2013).  The applicable regulations further provide that an individual must file a formal claim for educational assistance for pursuit of a program of education.  38 C.F.R. § 21.1030 (2013).  As a general matter, the date of claim is considered that on which a valid claim or application is considered to have been filed with VA, based upon either the date of a formal claim received at VA, or if an informal claim has been filed, and a formal claim is then received within one-year of the date VA requested it, the date VA received the informal claim will be determinative.  38 C.F.R. § 21.1029(b) (2013).

The assignment of an effective date for Chapter 35 educational assistance benefits shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation. 38 U.S.C.A. 5113(a) (West 2002).

Additionally, the effective date for the commencing date of an award of Chapter 35 benefits will be determined based on the latest of the following dates:  the beginning date of eligibility as determined by the applicable regulation (in this case, section 21.3041 pertaining to benefits for children of service members); one-year prior to the date of claim (as determined pursuant to section 21.1029, as explained above); the date certified by the educational institution; or the effective date of the course approval, or, one year before the VA receives the approval notice, whichever is later.  38 C.F.R. § 21.4131(d) (2013).

When determining the commencing date of DEA benefits, VA will consider an eligible person's application as having been filed on his/her eligibility date if 1)  the eligibility date is more than 1 year before the date of the initial rating decision that establishes that the Veteran has a permanent and total disability; 2)  the eligible person files his or her original application for DEA benefits 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 that VA receives his or her original claim; 4) VA received the original application on or after November 1, 2000; and 5) the eligible person would have been eligible to educational assistance under 38 U.S.C. chapter 35 if he or she had filed a claim on his or her eligibility date.  See 38 C.F.R. § 21.4135(d) (2013); see also 38 U.S.C.A. § 5113 (b)(2) (A)-(C) (West 2002).

The appellant's date of birth is shown to have been June [redacted], 1978.  He became 18 years of age on June [redacted], 1996.

On December 5, 1988, the Veteran submitted an application to reopen a previously denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD).  In April 1997, the RO established service connection for PTSD and assigned a 10 percent disability rating effective December 5, 1988.  The Veteran appealed this rating, and in a January 1999 decision, the RO increased this disability rating to 50 percent, effective February 10, 1997.  The Veteran continued his appeal, and eventually in January 2008, the RO granted a 70 percent disability rating for PTSD, effective December 5, 1988, and a 100 percent disability rating for PTSD, effective December 1, 1995.  In the January 2008 decision, the RO also established basic eligibility to DEA from December 1, 1995.

The appellant filled out a VAF 22-5490 (application for DEA), which he signed on January 22, 2009 and submitted to the VA on January 29, 2009, as per the VA's date stamp.  In the application, he indicated that he had attended the University of Pittsburgh from August 1997 to May 1999 and the Pittsburgh Institute of Aeronautics from October 1999 to June 2001.  The Board notes that in the application, the appellant specified that he was seeking retroactive benefits only for the training he received at the Pittsburgh Institute of Aeronautics.

On June [redacted], 2004, the appellant turned 26 years old.

The Board finds that the evidence supports the claim for payment of retroactive Chapter 35 benefits.  As shown above, the record shows that December 1, 1995 was the effective date given by the RO in its January 2008 rating decision that established initial eligibility to DEA benefits along with granting the Veteran a 100 percent disability rating for PTSD.  This effective date is not within one year of the RO's January 2008 rating decision establishing initial eligibility to DEA benefits.  Thus, the criteria for retroactive eligibility set out at 38 U.S.C.A. § 5113 and 38 C.F.R. § 20.4131(e) apply, as these provisions provide for situations where the prescribed eligibility date for DEA benefits is more than one year before the date of the initial rating decision that establishes that the Veteran has a permanent and total disability.  38 C.F.R. § 20.4131(e)(1).

The initial rating decision which established the Veteran's permanent and total disability rating was issued in January 2008.  However, notice of this decision was not mailed to the Veteran until October 7, 2008.  According to 38 C.F.R. § 3.110(b), the first day in computing the time limit for any action required of a claimant or beneficiary is the date of mailing of notification to the claimant or beneficiary of the action required.  Therefore, the appellant's January 2009 application for DEA was received by VA within one year of the Veteran's receiving notice of the initial rating decision granting him a permanent and total disability rating.  38 C.F.R. § 20.4131(e)(2).

The appellant indicated in his January 2009 application that he was seeking retroactive benefits for seven quarters of study completed at the Pittsburgh Institute of Aeronautics from October 1999 through June 2001.  This training led to the appellant's receipt of Associates Specialized Technology Airframe and Power Plant Licenses.  As the appellant completed his program in 2001, the educational assistance sought by the appellant is for a period greater than one year before the date VA received the appellant's original claim for DEA benefits, as that claim was received by VA in January 2009.  38 C.F.R. § 21.4131(e)(3).

As VA received the appellant's original claim for DEA benefits in January 2009, VA received the application after November 1, 2000, as specified by regulation.  38 C.F.R. § 21.4131(e)(4).

As the Veteran turned 18 years old in June 1996 and 26 years old in June 2004, his studies at the Pittsburgh Institute of Aeronautics from October 1999 through June 2001 commenced and were completed after he turned 18 and before he turned 26.  As the effective date for the Veteran's grant of permanent and total disability is December 1, 1995, the appellant's training began and was completed after the Veteran's permanent and total disability effective date.  The appellant is the child of the Veteran.  The Aviation Maintenance program at the Pittsburgh Institute of Aeronautics is a VA approved program.  Thus, appellant would have been eligible to educational assistance under 38 U.S.C. chapter 35 had he filed a claim on his original eligibility date.  38 C.F.R. § 21.4131(e)(5).

As the appellant has met the criteria set forth by regulation, he is entitled to retroactive DEA benefits for his period of education at the Pittsburgh Institute of Aeronautics, as specified in his original claim.



ORDER

Retroactive Dependents' Educational Assistance benefits under Chapter 35, Title 38, United States Code, are granted, subject to the law and regulations governing the payment of VA benefits.




____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs