Citation Nr: 18143054 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 15-04 174A DATE: October 17, 2018 ORDER Entitlement to a commencing date of November 1, 1998 for receipt of Chapter 35 Dependents Educational Assistance (DEA) benefits is granted; to this extent the appeal is allowed. REMANDED Entitlement to payment of DEA benefits for coursework undertaken during the eligibility period is remanded. FINDINGS OF FACT 1. The appellants filed their respective applications for DEA benefits within one year of the issuance of the June 2009 rating decision awarding service connection for the cause of the Veteran’s death. 2. The appellants’ basic eligibility date for DEA benefits, November 1, 1998, is more than one year before the June 2009 rating decision awarding service connection for the cause of the Veteran’s death. 3. The appellants would have been eligible for DEA benefits had they filed a claim on the November 1, 1998 eligibility date. 4. The DEA benefits sought by the appellants are for programs of education undertaken during a period prior to the one-year period ending on July 28 and August 12, 2009; that is, the dates on which the DEA benefits applications were received by VA. CONCLUSION OF LAW The criteria for a commencing date of November 1, 1998 for payment of DEA benefits under 38 U.S.C. Chapter 35 have been met. 38 U.S.C. §§ 3501, 5113 (2012); 38 C.F.R. §§ 3.102, 21.3021, 21.3041, 21.4131 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from November 1971 to May 1978. The named appellant in this case is his wife, who has appealed on behalf of J.B. and S.B. (hereinafter, “appellants”), the Veteran’s adult son and daughter. In a June 2009 rating decision, the Agency of Original Jurisdiction (AOJ), in pertinent part, granted service connection for the Veteran’s cause of death and basic eligibility to DEA benefits effective November 1, 1998. This decision was mailed to the Veteran’s surviving spouse (as noted above, the mother of the appellants) that month. The cover letter indicates that the surviving spouse and her dependents might be eligible for DEA benefits. The cover letter also indicates that VA pamphlet 22-73-3, “Summary of Education Benefits” had been enclosed and that this pamphlet explains the DEA program. Additionally, the cover letter indicates that in order to make a claim for DEA benefits, the appellant and/or her dependents should complete and return the enclosed VA Form 22-5490. Subsequently, J.B submitted a claim for DEA benefits which was received by VA on July 28, 2009. The claim filed by his sister, S.B., was received on August 12, 2009. In an October 2009 decision, the AOJ denied payment of DEA benefits for the appellants, because at that time they were both over 23 years of age. Basic eligibility for retroactive payment of DEA benefits may be awarded in certain circumstances. See 38 U.S.C. §§ 3512, 5113; 38 C.F.R. § 21.4131(e). 38 U.S.C. § 5113 (b) provides that if VA awards service connection for the cause of the Veteran’s death and an eligible person files an application for DEA benefits within one year after the issuance of the AOJ decision awarding service connection for the cause of death, the DEA application may be considered as having been filed on the eligibility date. This provision applies if the eligibility date is more than one year before the date of the AOJ decision that awarded service connection for the cause of death and the appellant would have been eligible for DEA benefits had he or she filed a claim on the eligibility date. The only additional requirement is that the DEA benefits sought must be for an “approved program of education during a period preceding the one-year period ending on the date on which the application was received by the Secretary.” 38 U.S.C. § 5113 (b); 38 C.F.R. § 21.4131 (e); Friedsam v. Nicholson, 19 Vet. App. 555, 562 (2006). J.B. was born in October 1978. S.B. was born in August 1980. On the effective date of basic eligibility for DEA benefits, November 1, 1998, J.B. was 20 years old and S.B. was 18. Consequently, the Veteran’s death occurred after the appellants’ 18th birthdays but before their 26th birthday. Accordingly, the appellants may elect November 1, 1998 as the beginning date of their period of eligibility. 38 C.F.R. § 21.3041 (b). As mentioned above, the appellants’ basic eligibility date for DEA benefits is November 1, 1998. This is more than one year before the date of the June 2009 rating decision that established that the Veteran’s death was service-connected. Also, J.B. and S.B. have claimed educational assistance for programs of education that appear to be approved (i.e. collegiate study), which were completed more than one year prior to July and August 2009, when their respective application for DEA benefits was received by VA. In this regard, the evidence indicates that J.B. had completed the programs of education for which he is seeking retroactive DEA benefits as of 2001; S.B.’s course of study ended in 2005. Additionally, as alluded to above, the appellants would have been eligible for DEA benefits had they filed a claim on their basic eligibility date of November 1, 1998, as they were 20 and 18 years old at that time. See 38 C.F.R. § 21.3041 (b)(a child’s period of eligibility generally begins on the child’s 18th birthday). The only remaining criterion that must be satisfied in order for the appellants to establish basic eligibility for retroactive DEA benefits is that they filed their applications or such within one year after the issuance of the AOJ decision awarding service connection for the Veteran’s cause of death. As noted above, both J.B. and S.B. filed their respective applications for DEA benefits well within one year after issuance of the June 2009 AOJ decision awarding service connection for the cause of their father’s death. Consequently, the Board finds that all necessary criteria have been met and the appellants’ DEA applications may be considered as having been filed on the basic eligibility date of November 1, 1998. Accordingly, a commencing date of November 1, 1998 may be assigned for the appellants’ entitlement to DEA benefits and they has established basic eligibility for payment of retroactive DEA benefits. 38 U.S.C. § 5113 (b); 38 C.F.R. § 21.4131 (e). The question of whether their program of education are approved for the retroactive payment of DEA benefits is addressed in the remand, below. REASONS FOR REMAND Payments of educational assistance are based on pursuit of an approved program of education. 38 C.F.R. § 21.9590 (a). “Program of education” means a curriculum or combination of courses pursued at an institution of higher learning that are accepted as necessary to meet the requirements for a predetermined and identified educational, professional, or vocational objective. The curriculum or combination of courses pursued must be listed in the institution of higher learning’s catalog and included in the approval notice provided by the State approving agency to VA. 38 U.S.C. §§ 3034, 3301, 3323, 3452; 38 C.F.R. § 21.9505. “Institution of higher learning” means a college, university, or similar institution, including a technical or business school, offering postsecondary level academic instruction that leads to an associate or higher degree if the school is empowered by the appropriate State education authority under State law to grant an associate or higher degree. 38 C.F.R. § 21.9505. Generally, a course of education offered by a school must be approved by the State approving agency for the State in which the school is located, or by the State approving agency which has appropriate approval authority, or, where appropriate, by VA. 38 C.F.R. § 21.4250 (a). As indicated above, the appellants have each established basic eligibility for payment of retroactive DEA benefits beginning November 1, 1998. However, there has been some suggestion in the record that not all of the educational programs completed by the appellants qualify as approved programs of education. Thus, to what extent the coursework undertaken by the appellants during the period of eligibility can be considered an “approved program of eduction” and thus qualifies for the retroactive of DEA benefits is a determination that the AOJ must make in the first instance. The matter is REMANDED for the following action: The AOJ should determine the extent to which the coursework completed by appellants J.B. and S.B. qualify for payment of DEA benefits. The AOJ should then provide payment of the retroactive benefits to which the appellants are entitled. If the appellants are not fully satisfied with the amount of retroactive benefits awarded, the AOJ should issue an appropriate supplemental statement of the case and provide the appellants the opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeremy J. Olsen, Counsel