Citation Nr: 18154665 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 15-19 494 DATE: November 30, 2018 ORDER Entitlement to an effective date of August 13, 2010 for the commencement of the period of eligibility for Dependents’ Educational Assistance benefits under Chapter 35 (DEA) is granted. FINDINGS OF FACT 1. A June 2013 decision granted the Veteran entitlement to DEA benefits. 2. In an August 2014 letter the appellant was notified that he had 60 days to select an effective date for beginning his eligibility for DEA benefits, and that if VA did not receive a response within this time frame, June 7, 2013 would be assigned as his start date. 3. The Veteran credibly testified that he and the appellant initially attempted to elect an effective date for DEA within 60 days of the August 2014 letter. CONCLUSION OF LAW The criteria for assignment of an effective date of August 13, 2010 for the beginning of the appellant’s eligibility for DEA benefits, have been met. 38 U.S.C. §§ 3501, 3512, 5107 (2012); 38 C.F.R. §§ 21.3032, 21.3040, 21.3041 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from July 1983 to July 1987. The appellant is the son of the Veteran, and he was born in December 1991, establishing that he was 18 years old prior to the date that the Veteran became permanently and totally disabled due to service-connected disabilities in 2010. He seeks entitlement to an effective date of August 13, 2010, the day that it was determined that service-connected disabilities made the Veteran permanently disabled, for the award of his DEA benefits. In pertinent part, it is contended that the appellant submitted a letter within the specified 60-day period described below, electing August 13, 2010, as the effective date for receipt of DEA benefits, but that the letter was lost in the mail. He asserts that the correspondence would have shown that he wished for the effective date for her DEA Chapter 35 benefits to be the 2010 date. Basic eligibility for DEA Chapter 35 benefits is established in one of several ways, including 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 (2017). Eligibility for Chapter 35 benefits further requires that the appellant must not reach his or her 26th birthday on or before the effective date of a finding of permanent and total service-connected disability. 38 C.F.R. § 21.3040 (c). Pursuant to applicable law and regulation, the basic beginning date of eligibility for educational assistance is normally the date the child reaches age 18, or the date of the child’s completion of secondary schooling, whichever occurs first. 38 C.F.R. § 21.3041(a). The period of eligibility generally ends on the earlier of the date of the child’s 26th birthday, or the date the veteran is no longer permanently and totally disabled. 38 C.F.R. § 21.3041 (a). If the effective date of the permanent and total rating occurs after the child’s 18th birthday but before the child’s 26th birthday, the child may elect the beginning date of his or her period of eligibility. The period of eligibility ends the earlier of the date the veteran is no longer rated permanently and totally disabled, or 8 years after the beginning date the child elects. 38 C.F.R. § 21.3041 (a)(2)(iii). VA must provide written notice to certain eligible children informing them of their right to elect the beginning date of their eligibility. 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 60 days of the date of the written notice. If the child does not elect the beginning date within 60 days of VA’s written notice informing him or her of the right to do so, the period of eligibility will begin on the date of VA’s decision that the Veteran has a permanent and total disability. 38 C.F.R. § 21.3041 (i). In this case, the appellant turned 18 in December 2009. In a June 2013 rating decision, the RO determined that the Veteran was permanently and totally disabled due to service-connected disability, effective August 13, 2010, and also awarded entitlement to DEA benefits. The appellant applied for DEA benefits on July 29, 2014. In an August 2014 letter, the RO informed the appellant that he had 60 days to elect the beginning date of his eligibility for DEA benefits and informed him that he could elect August 13, 2010, or June 7, 2013 or any date between these two dates as the beginning date. Records indicate that no request was received by VA within the 60-day timeframe. In January 2015, the Veteran contacted VA regarding the selection and was informed that the documents had not been received. At that time, the appellant electronically provided copies of the selection letter purportedly mailed in September 2014, which requested the August 13, 2010 date. In further support of this assertion, the Veteran testified at an April 2017 hearing before the undersigned that he personally mailed the letter, accompanied by his son, 16 days after receipt of the August 2014 notification. The election letter was not returned as undeliverable. The Veteran asserted that there was no indication of receipt from VA and when he did not hear anything as of January 2015, he called to inquire as to the status of his request and was told that no paperwork had been received. He further testified that he had previously undergone the DEA application process with his other children, and their election letters had been properly received by VA. Based on the testimony of the Veteran and the copies of the September 2014 election letter provided to VA in January 2015, the Board finds little reason to doubt the assertion that a request was mailed to VA within the 60-day window. The Veteran credibly testified, in great detail, as to the process he undertook to mail the election letter to VA. Copies of the letter have been associated with the file. Although the whereabouts of the original submission is unknown and cannot be reviewed to verify its mailing date, the Board finds it appropriate in this case to resolve reasonable doubt in favor of the appellant and assume that an election of August 13, 2010 was timely made. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeremy J. Olsen, Counsel