Citation Nr: 1804939 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 15-42 509A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office Education Center in St. Louis, Missouri THE ISSUE Entitlement to retroactive payment of Dependents' Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35. ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION Appellant is the son of a veteran, hereinafter referred to as the Veteran, who had active service from February 1988 to December 1988. This appeal is before the Board of Veterans' Appeals (Board) from an August 2015 decision by the Department of Veterans Affairs (VA) Regional Office (RO) Education Center in St. Louis, Missouri. A claim for dependent education benefits under the provisions of Chapter of Title 38, U.S.C. was received in March 2015. There are multiple appeals currently before the Board based on the Veteran's service with different appellants that arose at different times. As such, the appeals have different docket dates. For efficiency, the Board will adjudicate all appeals over which it has jurisdiction. See Ramsey v. Nicholson, 20 Vet. App. 16, 34 (2006) (holding that 38 U.S.C. § 7107 is not an exclusive set of rules by which the Board must consider and decide cases, but rather was intended "to set broad guidelines for the general order of processing appeals at the Board to ensure fairness, efficiency, and timeliness in consideration and decision of appeals"). FINDINGS OF FACT 1. Pursuant to a May 2013 rating decision, the Veteran was granted a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) effective February 28, 2011, and basic eligibility to DEA benefits was established from February 28, 2011, on the basis that the Veteran was found to have a total service-connected disability, permanent in nature, as of that date. 2. The appellant seeks retroactive payment of DEA benefits under 38 U.S.C. Chapter 35 for schooling from July 2011 to December 2011. 3. The appellant's application for DEA benefits was received by VA in March 2015. CONCLUSION OF LAW The criteria for retroactive payment of DEA benefits have not been met. 38 U.S.C. §§ 3512 , 5113 (2012); 38 C.F.R. §§ 21.1029(b), 21.4131 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159 (2017). With respect to the appeal for retroactive DEA benefits, resolution of this issue turns on the law as applied to the undisputed facts regarding the date of receipt of claim and date entitlement arose. As this issue turns on a matter of law, further assistance, such as the further procurement of records, would not assist the appellant with the appealed issue. As such, no further notice or development under the VCAA is warranted with respect to this issue. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). Retroactive DEA Benefits Basic eligibility for Chapter 35 benefits is established in one of several ways, including, as in this case, being the child of a Veteran who has a total and permanent disability rating from a service-connected disability. 38 U.S.C. § 3501(a)(1)(A); 38 C.F.R. §§ 21.3021(a)(1), 21.3041(a), (b). Under Chapter 35, a child's period of eligibility generally begins on either the earlier of the child's eighteenth birthday or successful completion of the child's secondary schooling. 38 U.S.C. § 3512; 38 C.F.R. § 21.3041(a). A child's period of eligibility may begin after his or her eighteenth birthday if the VA "first finds" that the Veteran has a total disability permanent in nature after the child's eighteenth birthday, but before her or his twenty-sixth birthday. 38 C.F.R. § 21.3041(a)(2), (b)(2); see also 38 C.F.R. § 21.3021(s) and 21.3041(b)(2)(ii) (reflecting that the term "first finds" means either the effective date of the total disability rating, or the date VA first notifies the Veteran or appellant of that rating, whichever is more advantageous to the child). If VA first finds the Veteran permanently and totally disabled after the child's eighteenth birthday but before his or her twenty-sixth birthday, the child may elect the beginning date of the 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 total disability, the date that VA provides notice of the relevant determination, or any date in between. Id. As pertinent to the present appeal, the date of claim is the date on which a valid claim or application for educational assistance is considered to have been filed with VA, for purposes of determining the commencing date of an award of that educational assistance. 38 C.F.R. § 21.1029(b). 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. § 5113(b); 38 C.F.R. § 21.4131(e). In a rating decision issued to the Veteran in May 2013, the RO granted a TDIU effective February 28, 2011 and basic eligibility to DEA benefits was established from February 28, 2011 on the basis that the Veteran was found to have a total service-connected disability, permanent in nature, as of that date. In March 2015, the appellant applied for DEA benefits under 38 U.S.C. Chapter 35. In an April 2015 "Certificate of Eligibility" letter, the agency of original jurisdiction (AOJ) informed the appellant that, as the Veteran's child, he was entitled to benefits for an approved program of education or training under the Chapter 35 DEA program. The letter informed the appellant that the choices for the beginning date of eligibility were the February 28, 2011 effective date of the Veteran's permanent and total service-connected disability or the date VA notified the Veteran of the permanent and total service-connected disability, in this case June 1, 2013, and that he had eight years from the beginning date he chose to use his benefits. The appellant in this case is seeking retroactive payment of DEA benefits under 38 U.S.C. Chapter 35 for schooling from July 2011 to December 2011. In an August 2015 denial letter, the AOJ informed the appellant that it could not, by law, pay for schooling that took place more than one year before the claim for such was received in March 2015. Throughout the course of this appeal, the appellant has contended that multiple education department case managers informed him that he is entitled to retroactive DEA benefits back to the original election date (i.e., February 28, 2011). See August 2014 notice of disagreement. The appellant contends that he should have been notified by VA he was eligible for DEA benefits. The appellant contends that there are thousands of cases like his, where some received retroactive DEA benefits and others did not, and contends this "confusion among the VA employees" has caused him to be denied where others have had the requested benefits granted. The appellant contends that VA had a duty to provide written notice to children regarding eligibility for DEA benefits. See December 2015 substantive appeal (on a VA Form 9). In connection with the December 2015 substantive appeal, the appellant submitted email exchanges with other veterans/claimants purporting to show that VA was applying the relevant law and regulation incorrectly in his case. In this case, the appellant was eligible for DEA benefits beginning the February 28, 2011 date that basic eligibility to DEA benefits was established in the May 2013 rating decision. See 38 U.S.C. § 3512. The initial rating decision establishing that the Veteran had a permanent and total disability, and thereby establishing the appellant's basic eligibility to DEA benefits under 38 U.S.C. Chapter 35, was issued in May 2013. The appellant filed his original application for DEA benefits under 38 U.S.C. Chapter 35 in March 2015, more than one year after the May 2013 decision. There is therefore no legal basis for considering the appellant's application for such benefits as having been filed on the February 28, 2011 eligibility date and thus no basis for awarding retroactive payment of Chapter 35, DEA benefits. With respect to the appellant's contention that VA had an affirmative duty to notify him with regard to eligibility for DEA benefits or that his father (the Veteran) was not notified regarding DEA benefits, the May 2013 rating decision specifically informed the Veteran that basic eligibility for DEA benefits under 38 U.S.C. Chapter 35 had been granted. Further, the governing regulation does not provide a time limit of one year from notice that retroactive benefits may be available, but rather provides that the time limit is one year from the initial rating decision. See 38 U.S.C. § 5113; 38 C.F.R. § 21.4131(e). The Board acknowledges the appellant's position in this case, including the statements he reports were made by education department case managers with respect to eligibility for retroactive DEA benefits. Despite the appellant's contentions that the law is being interpreted incorrectly in his case, the Board is bound by the statutes and regulations governing the payment of benefits. The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104 (2012); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Based on the above, there is no legal basis for granting retroactive payment of DEA benefits under 38 U.S.C. Chapter 35 in this case; therefore, the appellant's claim must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Retroactive payment of DEA benefits under 38 U.S.C. Chapter 35 is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs