Citation Nr: 1548881	
Decision Date: 11/19/15    Archive Date: 11/25/15

DOCKET NO.  13-25 312A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to extension of delimiting date beyond September 2, 2012, for Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code.


ATTORNEY FOR THE BOARD

John Kitlas, Counsel




INTRODUCTION

The Veteran served on active duty from December 1973 to September 1975.  The Appellant in this case is his former spouse.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2013 decision by the Education Center located at the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  The RO in Phoenix, Arizona, currently has jurisdiction over the claims folder.

The record reflects the Appellant had requested a hearing before a Veterans Law Judge (VLJ) in conjunction with this case, and that such a hearing was scheduled for July 2014.  However, the Appellant failed to report for this hearing and no good cause has been demonstrated for this failure.  Accordingly, her hearing request is deemed withdrawn.  See 38 C.F.R. § 20.704(d) (2015).


FINDINGS OF FACT

1.  The Veteran was found to be entitled to a total rating based upon individual unemployability (TDIU) via a January 1999 rating decision, effective from March 10, 1998.  He was notified of this decision by correspondence dated in March 1999.

2.  A December 1999 rating decision concluded that the basic eligibility for DEA benefits had been established based upon the permanency of the total rating established by the January 1999 rating decision.  He was notified of this decision via correspondence dated in January 2000.

3.  The record reflects the Veteran and the Appellant were married in September 2002, and that their marriage was dissolved in April 2015.

4.  The Appellant's application for DEA benefits was received in January 2013.


CONCLUSION OF LAW

The criteria for entitlement to an extension of the delimiting date September 2, 2012, for DEA benefits under the provisions of Chapter 35, Title 38, United States Code, have not been met.  38 U.S.C.A. §§ 3501, 3512, 5103A, 5107 (West 2014); 38 C.F.R. §§ 21.3046, 21.3047 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). 

The Board also notes, however, that the United States Court of Appeals for Veterans Claims (Court) has held that VCAA notification procedures do not apply in cases where the applicable chapter of Title 38, United States Code contains its own notice provisions.  See Barger v. Principi, 16 Vet. App. 132, 138 (2002) (VCAA notice was not required in case involving a waiver request).  In the present case, specific VCAA notice was not required because the applicable regulatory notification procedure was contained in 38 C.F.R. § 21.1031 for education benefit claims, not the VCAA.  Under 38 C.F.R. § 21.1031(b) "if a formal claim for educational assistance is incomplete, or if VA requires additional information or evidence to adjudicate the claim, VA will notify the claimant of the evidence and/or information necessary to complete or adjudicate the claim and the time limit provisions of § 21.1032(d)." 

In this case, the record does not reflect the Appellant's formal claim for DEA benefits under Chapter 35 was incomplete.  In any event, the Appellant has not demonstrated any prejudice with regard to the content or timing of any notice or lack thereof.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law  imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).

The Board also notes that, as detailed below, there is no legal basis to provide an extension of the delimiting date in this case.  The provisions of the VCAA have no effect on an appeal, as in the case here, where the law, and not the underlying facts or development of the facts, is dispositive of the matter.  Manning v. Principi, 16 Vet. App. 534, 542-543 (2002); see also Smith v. Gober, 14 Vet. App. 227, 230   (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821   (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOGCPREC 5-2004 (June 23, 2004).  In fact, the applicable notification and assistance procedures for educational assistance claims under 38 C.F.R. §§ 21.1031(b) and 21.1032(d) emphasize that VA has no further duty to notify or assist the claimant when the facts render the claimant ineligible for the claimed benefit under the law, as is the case here.

The Board adds that general due process considerations have been satisfied. See 38 C.F.R. § 3.103.  The Appellant has been provided ample opportunity to present evidence and argument in support of this claim, and she has in fact done so to include in her Notice of Disagreement and Substantive Appeal.  As noted in the Introduction, her request for a Board hearing before a VLJ has been deemed withdrawn.

Basic eligibility for Chapter 35 (DEA) 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; 38 C.F.R. § 21.3021.  In this case, the Veteran was found to be permanently and totally disabled by a decision dated via a January 1999 rating decision, when he was assigned a TDIU effective from March 10, 1998.  He was notified of this decision via correspondence dated in March 1999.  Moreover, a December 1999 rating decision concluded that the basic eligibility for DEA benefits had been established based upon the permanency of the total rating established by the January 1999 rating decision.  He was notified of this decision via correspondence dated in January 2000.

Under the rule regarding the payment of educational assistance benefits under Chapter 35, Title 38, of the United States Code, 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, or any date between the dates as specified by the eligible spouse.  38 U.S.C.A. § 3512(b)(1) ; 38 C.F.R. § 21.3046(a)(2)(iii). 

Educational assistance shall not exceed 10 years after one of the following last occurs: (i) The date on which the Secretary first finds the spouse from whom eligibility is derived has a service-connected total disability permanent in nature; (ii) The date on which the Secretary determines the spouse from whom eligibility is derived died of a service-connected disability. 38 U.S.C.A. § 512(b)(1)(B)(i)(ii)  .

The Board acknowledges that, in Ozer v. Principi, 14 Vet. App. 257 (2001), the Court found that the VA regulation limiting the period of a spouse's eligibility for educational assistance to 10 years (i.e., 38 C.F.R. § 21.3046(c)(1) ) was invalid because the 10-year limitation period was not contained or authorized by a previous version of 38 U.S.C.A. § 3512(b)(1); thus, the Court declared that the regulatory fixed 10-year term for Chapter 35 (DEA) education benefits was unlawful.  This decision had the effect of ending delimiting dates, provided that there was still Chapter 35 entitlement remaining or if Chapter 35 eligibility was just established on that basis. 

However, pursuant to Pub. Law 107-103, Congress subsequently invalidated Ozer and reinstated a 10-year delimiting period in which spouses may, upon first becoming eligible, use Chapter 35 spouse benefits.  The amendments contained in this law are only applicable to any determination of the eligibility of a spouse made on or after December 27, 2001, although the new law included a special "saving" provision for those spouses granted Chapter 35 benefits pursuant to the unrestricted delimiting period provided under Ozer.  See Pub. L. 107-103, § 108(c)(4), 115 Stat. 985 (2001). 

VA later promulgated regulations to implement the statutory "saving" provision. As the current regulations provide, if VA made a determination of eligibility for a spouse before December 27, 2001, the eligibility period has no ending date unless the spouse changes his or her program of education.  On or after December 27, 2001, if VA made a determination of eligibility for a spouse, the eligibility period cannot exceed 10 years, unless the period is extended pursuant to 38 C.F.R. 
§ 21.3046(c)(3) or 38 C.F.R. § 21.3047.  38 C.F.R. § 21.3046(c)(i)-(ii)  .

In this case, the Board acknowledges that the January 1999 and December 1999 rating decisions which established basic eligibility for DEA benefits was promulgated prior to December 27, 2001.  However, the Appellant did not submit a claim for DEA benefits prior to January 2013.  Further, the record reflects the Veteran and the Appellant were married in September 2002.  As such, the "saving" provision to the 10-year delimiting date does not apply in this case.

The Board acknowledges that the law provides for a 20 year delimiting period when the determination of a total and permanent disability is made no later than three years after discharge from service.  38 U.S.C.A. § 3512(b)(1)(D).  In this case, the Veteran was discharged from service in September 1975, but the award of a total disability permanent in nature and effective date thereof was made approximately 23 years after separation from service.  Therefore, the Appellant does not meet the legal requirements for the 20-year period of eligibility.

The law provides that the period of eligibility can be extended only under certain circumstances.  First, the period can be extended pursuant to 38 C.F.R. 
 § 21.3046(c)(3), which provides for extensions when the spouse during the eligibility period is ordered to certain types of active duty (e.g., full time National Guard duty).  This provision is not applicable in the Appellant's case, as there has been no evidence that she has served in the military, nor has she claimed to have any active duty service.

The 10-year delimiting period may be also extended if the eligible 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;" (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.  See 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.  See 38 C.F.R. 
§ 21.3047(c).  Also, it must be clearly established by medical evidence that such program of education was medically infeasible.  See 38 C.F.R. § 21.3047(a)(2)(i) .

In this case, the delimiting date was established as 10 years from the date the Veteran married the Appellant.  The record does not reflect she has one of the legal exceptions that permit an extension of the delimiting date for these benefits beyond the current September 2012 date.  

The Board acknowledges that the Appellant contends the delimiting date should be based upon the fact the Veteran was awarded 100 percent status in April 2011.  A review of the record indicates this appears to be in reference to a rating decision promulgated at that time which concluded the Veteran was incompetent for VA purposes.  However, as discussed above, the record reflects the Veteran was explicitly found to be permanently and totally disabled for DEA purposes in 1999, and was notified of this fact.  Moreover, the record also reflects that a July 2009 rating decision proposed to discontinue TDIU and DEA benefits, but that a subsequent August 2009 rating decision stated that the proposed discontinuation would not occur.  In short, the record reflects notification was sent to the Veteran, and presumably his spouse, that basic eligibility for DEA benefits had already been established.

The Board is sympathetic to the Appellant's position and the contentions she has advanced in support of her claim.  Nevertheless, the Board is without authority to grant a case on an equitable basis and instead is constrained to follow the specific provisions of law.  See 38 U.S.C.A. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994) (holding that only the Secretary is permitted by statute to take equitable considerations into account in reviewing claims for administrative error).  Here, the law mandates that the delimiting date for DEA benefits may only be extended under certain specific conditions, and there is nothing in the record to show that any apply in this case. 

The Board further notes that the evidence of record includes a divorce decree which reflects the marriage of the Veteran and the Appellant was dissolved in April 2015.  As the Appellant is no longer the Veteran's spouse, she has no longer has any legal basis to claim DEA benefits.

In view of the foregoing, the Board must find that there is no legal authority to extend the Appellant's delimiting date for DEA benefits under Chapter 35 beyond the current delimiting date.  Where the law and not the evidence is dispositive of the issue before the Board, the claim must be denied because of the absence of legal merit or the lack of entitlement under the law.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).


ORDER

The appeal is denied.



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals







Department of Veterans Affairs