Citation Nr: 1309187 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 09-15 182A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether the delimiting date of September 14, 2004, for Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, of the United States Code, is correct, and, if so, whether the criteria for extension of the delimiting date have been met. ATTORNEY FOR THE BOARD M. Tenner, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to September 1984. The appellant is the Veteran's spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 decision rendered by the Muskogee, Oklahoma Regional Office (RO) of the Department of Veterans Affairs (VA). In that decision, the RO denied a claim for Dependents' Educational Assistance under Chapter 35. In doing so, the RO determined that the appellant's eligibility to use Chapter 35 education benefits began on September 14, 1994, and ended on September 14, 2004. Because her claim was filed in November 2008, it was found to be untimely. Finally, the Veteran and the appellant were scheduled to appear at hearing before a Veterans Law Judge in October 2012. However, despite notice sent to their current address of record, they failed to report to the hearing as scheduled. FINDINGS OF FACT 1. In a September 1994 letter, the Veteran was notified that his service-connected psychiatric disability was permanent and total. He was also notified that his dependents may be entitled to Chapter 35, Dependents Educational Assistance. 2. The appellant filed a claim seeking entitlement to Chapter 35 educational benefits in November 2008. 3. The appellant was not prevented from initiating or completing her chosen program of education within her applicable period of eligibility because of a physical or mental disability. 4. Eligibility for educational assistance benefits pursuant to Chapter 35, Title 38, United States Code began on August 3, 1994, and ended on August 3, 2004. CONCLUSION OF LAW The criteria for an extension of the delimiting date beyond August 3, 2004, for educational assistance benefits pursuant to Chapter 35, Title 38, of the United States Code have not been met. 38 U.S.C.A. §§ 3501, 3512 (West 2002 & Supp. 2012); 38 C.F.R. §§ 21.3001-21.3021, 21.3046, 21.3047 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. 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 (West 2002 & Supp. 2012)) 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) (2012). In connection with the issue on appeal, the appellant has been notified of the reasons for the denial of her claim, and has been afforded the opportunity to present evidence and argument with respect to the issue. The Board finds that these actions are sufficient to satisfy the duties to notify and assist owed the appellant. In any event, as will be discussed below, the 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). II. Background and Analysis A marriage certificate reveals that the appellant was married to the Veteran in December 1983. Here, in a January 1989 rating decision, the RO granted service connection for schizophrenia and assigned an initial 50 percent rating, effective September 12, 1984, the day following the Veteran's discharge from active duty. In addition, the RO assigned a 100 percent disability evaluation, effective October 17, 1988. In an April 1991 decision, the RO found that the disability was not permanent and total in nature. The Veteran appealed that determination to the Board. In a December 1993 decision, the Board denied the claim, finding that he had a disability that was totally disabling but not permanently disabling. On August 3, 1994, the Veteran underwent a VA examination. Based on the results of that examination, the RO determined that the disability was both permanent and total (P&T). The P&T finding was effective August 3, 1994, the date of the VA examination. The Veteran was notified of that decision in a September 1994 letter. He was also advised that his dependents "may be entitled to Chapter 35, Dependents Educational Assistance." The appellant filed a claim seeking entitlement to Chapter 35 educational benefits in November 2008. She contends that basic eligibility for Chapter 35 benefits began on December 1, 2000. At that time she based her contention on a May 30, 2008 letter from the St. Louis, Missouri RO. The letter, which responded to a request for verification of disability for the purpose of a property tax exemption from the State of Texas, stated that the Veteran was a "100% service connected disabled veteran. VA records further disclose that the rating effective date is as of 12-01-2000." The appellant also contends, as related in her December 2008 Notice of Disagreement and reiterated in her subsequent substantive appeal, that she attempted several times over the years to obtain Chapter 35 DEA benefits, but "[e]verytime I have called" she was told that she did not qualify. 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) (West 2002); 38 C.F.R. § 21.3021(a)(3)(i) (2012). Under the rule regarding the payment of educational assistance benefits to a Veteran's spouse under Title 38 of the U.S. Code, Chapter 35, the beginning date of eligibility for a spouse of a Veteran with a permanent and total disability evaluation effective after November 30, 1968, is the effective date of the Veteran's total and permanent rating or the date of notification, whichever is more advantageous to the spouse. 38 U.S.C.A. § 3512(b)(1) (West 2002); 38 C.F.R. § 21.3046(a) (2012). Educational assistance shall not exceed 10 years after one of the following last occurs: (A) The date on which the Secretary first finds the spouse from whom eligibility is derived has a service-connected total disability permanent in nature; (B) The date of death of the spouse from whom eligibility is derived who dies while a total disability evaluated as permanent in nature was in existence; (C) The date on which the Secretary determines that the spouse from whom eligibility is derived died of a service-connected disability. 38 U.S.C. § 3512(b)(1) (West 2002); 38 C.F.R. § 21.3021(a) (2012). The Board has considered the appellant's contentions but finds them insufficient to afford the appellant DEA benefits. The Board notes that her reliance on the May 30, 2008, RO letter is misplaced and may not be used to establish an eligibility date for the grant of Chapter 35 educational benefits. First, the letter was provided for property tax exemption purposes and was not provided in reference to any inquiry relating to Chapter 35 educational benefits. Second, the letter makes no specific reference to a finding of a permanent and total disability for purposes of establishing Chapter 35 benefits. Moreover, and critically, the Veteran was previously notified as to the grant of eligibility for Chapter 35 educational benefits and the establishment of an eligibility date. This information was clearly communicated by VA in the September 1994 letter. Thus, the Board finds that September 1994 constitutes the appropriate eligibility date for the commencement of Chapter 35 educational benefits and that the delimiting dates for such was 10 years later in September 2004. This September 1994 letter also provided clear instructions regarding how to obtain DEA benefits. Specifically, the letter states in order to be considered for DEA benefits, "the enclosed VA Form 22-5490 should be completed and returned to this office by your dependent." The appellant does not assert that she did this. Rather, she asserts that she made numerous phone calls to VA over the years, only to be told she did not qualify. There is no evidence in the record to support this bald assertion and the Board does not find such assertions credible. In this regard, the Board notes that the record contains a "Report of Contact" form dated October 20, 1994, detailing a telephone conversation with the Veteran concerning a request for waiver of overpayment in a separate matter. No such contemporaneous reports of contact reflect the appellant's assertion. The Board acknowledges that there are circumstances in which the delimiting date may be extended. For instance, the 10 year delimiting period may be extended if the eligible spouse or surviving spouse does the following: (1) applies for the extension within the appropriate time limit; (2) was prevented from initiating or completing the chosen program of education within the otherwise applicable eligibility period because of a physical or mental disability that did not result from willful misconduct of the eligible spouse; (3) provides VA with any requested evidence tending to show that he/she was prevented from initiating or completing the program because of a physical or mental disability that did not result from the willful misconduct of the eligible spouse; and (4) is otherwise eligible for payment of educational assistance for the training pursuant to Chapter 35. 38 U.S.C.A. § 3512(b)(2); 38 C.F.R. § 21.3047(a)(i-iv). An eligible spouse's extended period of eligibility shall be for the length of time that the individual was prevented from initiating or completing her chosen program of education. 38 C.F.R. § 21.3047(c). Also, it must be clearly established by medical evidence that such program of education was medically infeasible. 38 C.F.R. § 21.3047(a)(2)(i). Here, however, the appellant does not identify any of the circumstances above. Rather, her request hinges on: (1) the appropriate date for eligibility to Chapter 35 educational benefits; or in the alternative (2) she was provided inaccurate advice pursuant to telephone inquiries. The Board has also considered the judicial holding in Ozer v. Principi, 14 Vet. App. 257 (2001), as it may apply to the appellant's claim as to extending the delimiting date. In that case, the issue revolved around 38 U.S.C.A. § 3512(b)(1), which addresses when the 10-year delimiting period will expire. 38 U.S.C.A. § 3512(b)(1). The Ozer decision essentially permitted Chapter 35 eligible spouses an unlimited delimiting period for benefits due to the technical problems in the language of Chapter 35. The U.S. Court of Appeals for Veterans Claims (Court) rendered the Ozer decision on February 6, 2001. However, subsequently, the United States Congress has changed the law under 38 U.S.C.A. § 3512. See Public Law No 107-103, § 108, 115 Stat. 985 (Dec. 27, 2001). This change in the law addresses the eligibility of a spouse or surviving spouse for educational assistance under Chapter 35 of Title 38, United States Code, who files a claim after December 27, 2001. In effect, the applicable provisions of Public Law 107-103 invalidated the Ozer decision, at least as to claims brought after that date. The applicable provisions of Public Law 107-103, codified under 38 U.S.C.A. § 3512, provide that for all eligibility decisions which are made on or after December 27, 2001, spouses are entitled to a 10-year delimiting period, in which they may, upon first becoming eligible, use Chapter 35 benefits. The delimiting date is determined as if the Ozer decision never existed. Although the law included a special "saving" provision for those spouses granted Chapter 35 benefits pursuant to an unlimited delimiting period provided under Ozer, the appellant does not fall under this finite category. In this case, the appellant initially filed for DEA benefits in November 2008, which is after December 27, 2001. As such, the provisions of Ozer are not applicable. Although the Board is sympathetic to the appellant's argument that a different Chapter 35 eligibility date should apply; there is simply no basis in the law for the Board to do so. The eligibility date is August 3, 1994, and such fact was clearly communicated in the September 1994 VA letter. There is no evidence that the Appellant completed and filed the necessary forms to obtain DEA benefits at the time of the September 1994 VA letter, nor does she assert that she attempted to do so. The Board is bound by applicable law and regulations when determining a claim for VA benefits. Here, the regulatory criteria governing an extension of the delimiting date 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's request for an extension of the delimiting date for her DEA benefits under Chapter 35. Therefore, this claim is denied 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. In making this determination, the Board does not wish to convey any lack of sympathy for the appellant in this matter. Moreover, the Board does not doubt the sincerity of the appellant's contentions. However, the Board is bound by the laws and regulations governing the payment of benefits, which, in this case, do not support the award of benefits. ORDER An extension of the delimiting date of September 14, 2004, for Dependents' Educational Assistance benefits under Chapter 35, Title 38, of the United States Code is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs