Citation Nr: 1720116	
Decision Date: 06/06/17    Archive Date: 06/21/17

DOCKET NO.  12-09 977	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office and National Education Center in Muskogee, Oklahoma


THE ISSUE

Whether the appellant is basically eligible for Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code.


ATTORNEY FOR THE BOARD

R. Behlen, Associate Counsel



INTRODUCTION

The Veteran served on active duty in the Army from February 1969 to March 1971.  He died in July 2009.  The appellant in this case is his son.

This matter originally came before the Board of Veterans' Appeals (Board) from a July 2011 determination by Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which determined that the appellant was not basically eligible for DEA benefits.  The Board notes that the claims file is currently in the jurisdiction of the RO in Muskogee, Oklahoma.

In a January 2014 decision, the Board denied the appellant's claim for eligibility for DEA benefits, finding that although an April 2009 rating decision established the Veteran's eligibility for DEA from August 18, 2008, as the appellant's 26th birthday occurred in July 2008, prior to the date basic DEA eligibility was established, he was not legally entitled to those benefits.

The appellant appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims.  While the matter was pending before the Court, in December 2015, the appellant and a representative of VA's General Counsel filed a Joint Motion for Remand, finding that the Veteran, prior to his death, had submitted a timely notice of disagreement with the April 2009 rating decision establishing eligibility for DEA benefits effective August 18, 2008, and that a remand was necessary for the Board to consider the appellant's claim in light of that finding.  In a December 2015 order, the Court granted the motion and remanded the matter to the Board for action consistent with the December 2015 joint motion.  

In March 2016, the Board remanded the matter to the RO for additional evidentiary development and due process considerations.  A review of the record indicates that the RO undertook none of the ordered development.  Ordinarily, another remand of this matter would therefore be required.  See e.g. Stegall v. West, 11 Vet. App. 268 (1998) (holding that the RO's compliance with the Board's remand instructions is neither optional nor discretionary).  Given the length of time this appeal has been pending, however, and in light of the favorable determination below, it is the judgment of the undersigned that rendering a decision at this juncture best serves the interests of the appellant.  Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that a claimant's "interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution").  


FINDINGS OF FACT

1.  The appellant, who is the Veteran's son, was born in July 1982.  He turned 18 in July 2000 and 26 in July 2008.  

2.  In an August 2008 decision, the Board granted a 100 percent schedular disability rating for the Veteran's service-connected schizophrenia, effective November 7, 1996.  The Board also granted a 70 percent rating for schizophrenia and a total rating based on individual unemployability due to service-connected disability for the period from September 1, 1992, to November 6, 1996.  

4.  In an April 2009 rating decision, the RO effectuated the Board's decision, and further determined that basic eligibility for DEA benefits had been established based on permanent and total disability from August 18, 2008, the date of the Board decision.

5.  The Veteran died in July 2009.

6.  The appellant's application for DEA benefits was received by VA not later than February 2010.

7.  The April 2009 rating decision was clearly and unmistakably erroneous in failing to determine that the the Veteran had a total service-connected disability permanent in nature at least as of September 1, 1992.


CONCLUSIONS OF LAW

The criteria for entitlement to Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code, have been met.  38 U.S.C.A. §§ 3501, 3512, 5113 (West 2014); 38 C.F.R. §§ 21.3021, 21.3030, 21.3040, 21.3041 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Veterans Claims Assistance Act of 2000 (VCAA)

Under the VCAA, VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate a claim.  See 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b) (1).  VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating that claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  In light of the favorable disposition below, the Board finds that any deficiency in VA's VCAA notice or development actions is harmless error with respect to the issues adjudicated in this decision.

II.  Background

The relevant facts in this case are not in dispute.  

The appellant was born in July 1982.  He turned 18 in July 2000 and 26 in July 2008.  

In a decision dated August 18, 2008, the Board granted a 100 percent schedular disability rating for the Veteran's service-connected schizophrenia, effective November 7, 1996.  The Board also granted a 70 percent rating for schizophrenia and a total rating based on individual unemployability due to service-connected disability for the period from September 1, 1992, to November 6, 1996.  

In an April 2009 rating decision, the RO effectuated the Board's decision and further established basic eligibility to DEA benefits from August 18, 2008, finding that "the evidence shows the veteran currently has a total service connected disability permanent in nature.  This benefit provides certain education related benefits Eligibility to Dependents Educational Assistance is established from August 18, 2008 based on the facts found (date of BVA decision)."

In May 2009, the Veteran submitted a notice of disagreement with the effective date assigned by the RO for the award of a permanent and total rating.  In a June 2009 statement, the Veteran indicated that his "'permanency status' should be made retroactive, so that my children could receive their [Chapter] 35 benefits."  

The Veteran died in July 2009, while his effective date appeal remained pending.  The record contains no indication that the RO took further action on this issue.  

In February 2010, the appellant submitted a statement indicating that in light of the retroactive award of a 100 percent rating for the Veteran's schizophrenia, he had submitted an application for retroactive Chapter 35 benefits for the time he was a student.  He indicated, however, that he had not yet received a reply to his application.  The record does not contain a copy of the appellant's earlier application, nor does it contain any indication that the RO took action on the appellant's February 2010 request.  

In June 2010, the Veteran's surviving spouse submitted an application for DIC benefits based on service connection for the cause of the Veteran's death.  

In a March 2011 rating decision, the RO granted service connection for the cause of the Veteran's death and established basic eligibility to DEA benefits based on a service-connected death.  The RO did not adjudicate the issue of entitlement to accrued benefits in the March 2011 rating decision.  In the March 2011 letter notifying the appellant of its decision, the RO noted only that "[a]n accrued benefit is any money we owe a veteran at the time of death. We can't approve your claim for accrued benefits because VA didn't owe the veteran any money."

Apparently, in March 2011, the appellant again submitted a claim for DEA benefits requesting educational benefits from August 1, 2000.  (Again, a copy of this document is not included in the record on appeal, although the January 2014 Board decision references it.  The Board further notes that the January 2014 Board decision itself is not included in the record, although the Board was able to review a copy of this document in an online legal database).  

In a July 2011 letter, the RO advised the appellant that he was not eligible for DEA benefits because the effective date of the Veteran's permanent and total rating was August 18, 2008, after the appellant's 26th birthday.  In addition, because the Veteran died in July 2009, also after the appellant's 26th birthday, the appellant was not eligible for DEA benefits based on a service-connected death.  

The appellant appealed the RO's determination.  In his notice of disagreement, the appellant noted that the Veteran had been effectively rated as 100 percent disabled well prior to his 26th birthday, and that he should therefore be eligible for Chapter 35 benefits.  (The Board notes that the record on appeal is missing the Statement of the Case which the RO presumably issued in response to the notice of disagreement, as well as the appellant's substantive appeal).

III.  Applicable Law

Congress established Dependents' Educational Assistance under Chapter 35, Title 38, United States Code, for the purpose of providing opportunities for education to children whose education would otherwise be impeded or interrupted by reason of the disability or death of a parent from a disease or injury incurred or aggravated in service, and for the purpose of aiding such children in attaining the educational status which they might normally have aspired to and obtained but for the disability or death of such parent.  38 U.S.C.A. § 3500 (West 2014).  

DEA benefits are payable to a child of a Veteran who has a permanent total service-connected disability or who dies of a service-connected disability.  38 U.S.C.A. § 3501 (West 2014); 38 C.F.R. § 3.807 (2016).

The period of eligibility for such benefits begins on the child's eighteenth birthday, or on the successful completion of secondary schooling, whichever occurs first.  The period of eligibility ends on the child's twenty-sixth birthday, with exceptions not relevant here.  38 U.S.C.A. § 3512 (West 2014); 38 C.F.R. § 21.3041(d) (2016).  No person is eligible for educational assistance who reached his or her 26th birthday on or before the effective date of a finding of permanent total service-connected disability, or on or before the date the Veteran's death occurred.  38 C.F.R. § 21.3040 (2016).  

The commencing date of an award of DEA benefits under 38 U.S.C. Chapter 35 is generally no earlier than one year before the date that the application for such benefits is filed with VA.  See 38 C.F.R. §§ 21.1029(b), 21.4131(d).  However, an eligible person's application for such benefits will be considered as having been filed on his or her eligibility date if certain requirements are met, including (1) the eligibility date is more than one year before the date of the initial rating decision that establishes that the Veteran has a permanent and total disability, and (2) the eligible person files his or her original application for DEA benefits under 38 U.S.C. Chapter 35 within one year of the initial rating decision establishing the existence of the service-connected permanent and total disability of the person from whom such eligibility is derived.  38 U.S.C.A. § 5113(b); 38 C.F.R. § 21.3141(e).

III.  Analysis

As a preliminary matter, the Board finds that the April 2009 rating decision discussed above was clearly and unmistakably erroneous in failing to determine that the the Veteran had a total service-connected disability permanent in nature as of September 1, 1992.  

Under 38 C.F.R. § 3.105, previous determinations which are final and binding will be accepted as correct in the absence of clear and unmistakable error.  Where evidence establishes such error, however, the prior decision will be reversed or amended.  

In this case, as set forth above, the April 2009 rating decision determined that the Veteran was permanently and totally disabled effective August 18, 2008, for no apparent reason other than the fact that the Board decision was dated August 18, 2008.  

Upon a review of the evidence of record, the Board finds that the record and the law in effect at the time of the April 2009 rating decision clearly and unmistakably established that the Veteran was permanently and totally disabled effective September 1, 1992, the effective date of the award of a total rating based on individual unemployability due to service-connected disability.  Under the law in effect at that time, as now, 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).  The evidence of record at the time of the April 2009 rating decision further showed that the Veteran's total occupational and social impairment from his service-connected schizophrenia was reasonably certain to continue throughout the life of the Veteran beginning September 1, 1992.  Moreover, the record reflected that the appellant's schizophrenia was longstanding and total incapacitating, including as recognized by the Social Security Administration.  See 38 C.F.R. § 3.340(b) (setting forth the criteria for a permanent total disability).  In fact, the Veteran's total disability did continue throughout the rest of the Veteran's life.  

Based on the foregoing, the Board finds that the April 2009 rating decision was clearly and unmistakably erroneous in failing to determine that the the Veteran had a total service-connected disability permanent in nature as of September 1, 1992, and it must accordingly be revised.  

Having determined that the Veteran was permanently and totally disabled effective September 1, 1992, basic eligibility for DEA benefits began as of that date.  38 U.S.C.A. §§ 3500, 3501, 3510; 38 C.F.R. § 3.807.

Moreover, the Board finds that the record is sufficient to establish that the appellant's application for DEA benefits was received by VA no later than February 2010, within one year of the April 2009 initial rating decision which first established entitlement to DEA benefits.  38 U.S.C.A. § 5113(b); 38 C.F.R. § 21.4131(e).  

The appellant did not reach his 26th birthday on or before September 1, 1992.  38 C.F.R. § 21.3040(c).  The appellant's claimed educational expenses were incurred beginning in August 2000, after the Veteran was permanently and totally disabled, and after the appellant turned 18.  38 U.S.C.A. § 3512; 38 C.F.R. §§ 21.3040, 21.3041.  

Under these circumstances, the Board concludes that basic eligibility for Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code, has been established.  The Board further notes that its conclusions reached above are consistent with the stated purpose of the statute establishing Chapter 35 Dependents' Educational Assistance, i.e. to provide opportunities for education to children whose education would otherwise be impeded or interrupted by reason of the disability of a parent from service-connected disability.  38 U.S.C.A. § 3500 (West 2014).  


ORDER

Entitlement to basic eligibility to Dependents' Educational Assistance under Chapter 35, Title 38, United States Code is granted.




______________________________________________
K. Conner
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs