Citation Nr: 1509162 Decision Date: 03/03/15 Archive Date: 03/17/15 DOCKET NO. 12-33 760A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to Dependents' Educational Assistance (DEA) benefits under the provisions of Chapter 35, Title 38, United States Code, prior to March 24, 2011. ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1965 to August 1969. The appellant is his son. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2012 administrative decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which notified the appellant that it could not accept his election of December 1, 2003 as the beginning date of eligibility for his Chapter 35 DEA benefits as his election form was received in an untimely manner. The appellant timely appealed this decision. FINDINGS OF FACT 1. By way of a March 24, 2011 rating decision, the Veteran, who is the appellant's father, was determined to be permanently and totally disabled effective December 1, 2003. 2. By way of an October 2011 letter, the RO notified the appellant that he was entitled to Chapter 35 DEA benefits and requested that he elect within 60 days a beginning date for his period of eligibility for benefits sometime from December 1, 2001 to April 13, 2011 (if no notice is received, March 24, 2011 was to be the date assigned); a response was not provided within 60 days of the request for a beginning date election; his response (election of December 1, 2003) was received in March 2012 when the appellant first received a complete copy of the October 2011 decision letter and accompanying VA Form 4107. 3. The evidence of record contains clear evidence to the contrary necessary to rebut the presumption of regularity that the RO sent the October 2011 decision letter with accompanying VA Form 4107 to the appellant's correct address of record at the time (Jamaica, NY address). CONCLUSION OF LAW The requirements for eligibility for Chapter 35 DEA benefits prior to March 24, 2011 are met. 38 U.S.C.A. §§ 3500, 3501, 3512 (West 2014); 38 C.F.R. §§ 3.807, 21.3020, 21.3021. 21.3041 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is claiming entitlement to retroactive benefits under Chapter 35, also known as Dependents' Educational Assistance (DEA). By way of a March 24, 2011 rating decision, the Veteran, who is the appellant's father, was determined to be permanently and totally disabled effective December 1, 2003. Educational assistance is available to a child of a veteran who has a total disability permanent in nature resulting from a service-connected disability. 38 U.S.C.A. § 3501; 38 C.F.R. §§ 3.807(a)(2), 21.3021(a)(1). For purposes of Chapter 35, 'child' means the son or daughter of a veteran who meets the requirements of 38 C.F.R. § 3.57, except as to age and marital status. 38 C.F.R. §§ 3.807(d)(1), 21.3021(b). A total disability permanent in nature, refers to a service-connected disability rating determined by VA to be total for the purposes of VA disability compensation where the impairment is reasonably certain to continue throughout the life of the disabled veteran. 38 C.F.R. § 21.3021(p). The effective date of a permanent and total rating means the date from which VA considers that the veteran's permanent and total disability commenced for purposes of VA benefits, as determined by the initial rating decision. 38 C.F.R. § 21.3021(r). Under Chapter 35, a child's period of eligibility generally begins on the child's eighteenth birthday, or upon successful completion of the child's secondary schooling, whichever first occurs. 38 U.S.C.A. § 3512; 38 C.F.R. § 21.3041(a). However, a child's period of eligibility may begin after his eighteenth birthday if VA first finds the veteran has a permanent and total disability after the child's eighteenth birthday but before his twenty-sixth birthday. 38 C.F.R. § 21.3041(a)(2). For purposes of this section, 'first finds' means the effective date of the permanent and total rating or the date VA first notifies the veteran of that rating, whichever is more advantageous to the child. 38 C.F.R. § 21.3021(s). If VA first finds the veteran has a permanent and total disability after the child's eighteenth birthday but before his twenty-sixth birthday, the child may elect the beginning date of his or 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 permanent and total rating, the date VA notifies the veteran of the permanent and total rating, or any date in between. Id. In these circumstances, VA must provide written notice to the child informing him of his 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. Id. at (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 the veteran has a permanent and total disability. Id. at (2)(i). In September 2011, the appellant submitted a VA Form 22-5490, Dependents' Application for VA Education Benefits. In the application, the appellant indicated that he was seeking retroactive DEA benefits for undergraduate and graduate (law) schooling he attended from August 2004 through May 2007. By way of an October 2011 letter, the RO notified the appellant that he was entitled to Chapter 35 DEA benefits and requested that he elect within 60 days a beginning date for his period of eligibility for benefits sometime from December 1, 2001 to April 13, 2011. He was notified that if no notice is received during that timeframe, March 24, 2011 was to be the date assigned. No response during the 60-day timeframe is documented in the claims file nor does the appellant allege that he submitted a response during that time period. The appellant, in a March 2012 written statement, explained that he did not receive the October 2011 VA Form 4107 until he received a complete copy of the October 2011 VA Form 4107 in March 2012, after previous attempts to have VA mail the form to his correct address. The appellant avers that although the October 2011 decision letter indicates the correct address of the appellant in the heading of the letter, the letter and accompanying VA Form 4107 was not actually mailed to the correct address (as indicated on his VA Form 22-5490). He contacted a customer service representative who indicated to him that the October 2011 VA Form 4107 was originally mailed to a Brooklyn, New York address as opposed to his Jamaica, New York address. As soon as he received a faxed copy of the October 2011 VA Form 4107 in March 2012, he sent his response electing the start date of December 1, 2003 for his benefits. The case file documents the faxed copy of the October 2011 VA Form 4107 as sent to the appellant in March 2012 and his immediate response. The claims file does not show and the appellant does not contend that the completed Form 4107 was received by the RO prior to March 2012 (or at any time during the 60-day timeframe). The issue in this case turns on whether the "presumption of regularity" of the RO having properly discharged its official duties, to include properly sending correspondence to the appellant's last known mailing address, can be rebutted. In this regard, the Court of Appeals for Veterans Claims (CAVC) has made clear that a "presumption of regularity" supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.' Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed. 131 (1926)). Fithian v. Shinseki, 24 Vet. App. 146, 150 (2010); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (applying this presumption of regularity to procedures at the RO). The presumption of regularity regularly dictates that the RO would have sent the appellant the October 2011 letter and accompanying Form 4107 to the appellant's last known address of record, which is his Jamaica, New York address (also listed at the top of the October 2011 letter). However, here, the compelling assertions of the appellant provide the "clear evidence to the contrary" necessary to rebut the presumption of regularity. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir 2009). The Board recognizes that the Court has specifically held that a statement by a claimant, standing alone, is not sufficient to rebut the presumption of regularity in VA operations. Mason v. Brown, 8 Vet. App. 44, 55 (1995) ("appellant's statement of nonreceipt, standing alone, is not the type of 'clear evidence to the contrary' which is sufficient to rebut the presumption"); see also Clemmons v. West, 206 F.3d 1401, 1403 (Fed. Cir. 2000) (Government officials are presumed to carry out their duties in good faith and proof to the contrary must be almost indisputable to overcome that presumption). In this case, the appellant provided more than mere statements in support of his claim. He explained, through numerous written statements, how he proactively engaged with VA to ensure that he received the proper correspondence that would enable him to have his benefits processed. His statements are supported by the fax that he received from the RO in March 2012 and his immediate response to the fax. Furthermore, as the appellant has pointed out, an election of a date other than December 1, 2003 would have placed him outside the timeframe to receive his DEA benefits. The Board also notes that in this case, the appellant's arguments themselves provide weighty evidence necessary to rebut the presumption. The appellant is an attorney employed by the VA. He is well aware that any false statements made in connection with his claim for VA benefits would jeopardize his ability to practice law. Based on the appellant's arguments and evidence he has submitted in support of his claim and weighing it against the existing evidence in the claims file, the Board finds that there is "clear evidence to the contrary" and the presumption of regularity, specifically, in this case that the RO has properly discharged their official duties and sent the October 2011 letter to the correct mailing address, is rebutted. Therefore, the Board finds that an election date prior to March 24, 2011 is assignable. Specifically, the appellant has chosen the election date of December 1, 2003 (the date that the appellant's father, the Veteran, became totally disabled for VA purposes). The claim is granted, and the appellant is awarded his chosen date of December 1, 2003 as the beginning date of his entitlement to Chapter 35 DEA benefits. ORDER The appeal seeking DEA benefits under the provisions of Chapter 35, Title 38, United States Code, beginning on December 1, 2003, is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs