Citation Nr: 18160199 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 15-28 316 DATE: December 26, 2018 ORDER Entitlement to retroactive Dependents’ Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35 is denied. FINDINGS OF FACT 1. An October 26, 2012, rating decision granted entitlement to service connection for the cause of the Veteran’s death and granted eligibility to DEA benefits, effective June 7, 1992; the Veteran’s widow, who is the appellant’s mother, was notified of this decision by a December 4, 2012, letter. 2. The appellant, the Veteran’s daughter, was academically enrolled from the Fall 1994 semester to the Fall 1997 semester. 3. The Agency of Original Jurisdiction (AOJ) received the appellant’s claim for DEA benefits on May 19, 2014, which was after the October 26, 2013, deadline. CONCLUSION OF LAW The criteria for entitlement to retroactive DEA benefits under 38 U.S.C. Chapter 35 have not been met. 38 U.S.C. §§ 3500, 3501, 3512, 3513, 5113, 7104 (2012); 38 C.F.R. §§ 21.3020, 21.3021, 21.3040, 21.3041, 21.4131 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from June 1968 to April 1971. He died in June 1992. The appellant is his adult daughter. Basic eligibility for 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; or being the child of a deceased Veteran where the death was due to 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, however, begin after her eighteenth birthday if VA “first finds” that the Veteran has a total disability permanent in nature or grants service connection for the cause of the Veteran’s death after the child’s eighteenth birthday but before her twenty-sixth birthday. 38 C.F.R. § 21.3041(a)(2), (b)(2). The term “first finds” means either the effective date of the total disability rating, the date of the Veteran’s death, or the date VA first notifies the Veteran or an appellant of that rating, whichever is more advantageous to the child. See 38 C.F.R. §§ 21.3021(s), 21.3041(b)(2)(ii). If VA first finds the Veteran’s cause of death is service connected after the child’s eighteenth birthday but before her twenty-sixth birthday, the child may elect the beginning date of her period of eligibility. 38 C.F.R. § 21.3041(b)(2). The child can elect as a beginning date the date of the Veteran’s death, 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) (2017). An eligible person’s application for DEA benefits under Chapter 35 will be considered as having been filed on her eligibility date, if: (1) The eligibility date is more than one year before the date of the initial rating decision that establishes either: that the Veteran’s death is service-connected, or that the Veteran has a permanent and total disability; (2) the eligible person files his or her original application for benefits under Chapter 35 with VA within one year of the initial rating decision; (3) the eligible person claims educational assistance for pursuit of an approved program of education for a period that is more than one year before the date VA receives his or her original claim; (4) VA either received the original application on or after November 1, 2000; or received the original application and as of November 1, 2000, either (A) had not acted on it; or (B) had denied it in whole or in part, but the claimant remained entitled to pursue available administrative and judicial remedies as to the denial; and (5) the eligible person would have been eligible to educational assistance under Chapter 35 if he or she had filed a claim on his or her eligibility date. 38 U.S.C. § 5113; 38 C.F.R. § 21.4131(e). The term “initial rating decision” means with respect to an eligible person a decision made by the Secretary that establishes (i) service connection for the death of the person from whom such eligibility is derived or (ii) the existence of the service-connected total disability permanent in nature (or, in the case of a person made eligible under 38 U.S.C. § 3501(a)(1)(E), the total disability permanent in nature incurred or aggravated in the line of duty in the active military, naval, or air service) of the person from whom such eligibility is derived, as the case may be. 38 U.S.C. § 5113(b)(3). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by VA. 38 U.S.C. § 5101(a) (2012); 38 C.F.R. § 3.151(a) (2017). For claims received on or after March 24, 2015, VA amended its regulations governing how to file a claim. The effect of the amendment was to standardize the process of filing claims, as well as the forms accepted, in order to increase the efficiency, accuracy, and timeliness of claims processing, and to eliminate the concept of informal claims. See 38 C.F.R. § 3.155 (2017); 79 Fed. Reg. 57660-01. However, prior to the effective date of the amendment, an informal claim was any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA. The benefit sought must be identified, but need not be specific. See 38 C.F.R. § 3.155(a) (2013). In an October 26, 2012, rating decision, service connection was granted for cause of the Veteran’s’ death, as well as eligibility for DEA, effective June 7, 1992. The The appellant was born on July [redacted], 1976, and is the daughter of the Veteran. On June 7, 1992, the effective date of the Veteran’s service connection for cause of death, the appellant was 15 years old. See 38 C.F.R. § 21.3041(a), (b). She turned 18 years old on July [redacted], 1994. Although the appellant is entitled to DEA benefits by virtue of her late father’s service connection for cause of death, the issue before the Board is whether the DEA benefits may be applied retroactively to pay for a program of education undertaken from the Fall 1994 semester to the completion of the Fall 1997 semesters. Notice of the October 26, 2012, rating decision was sent to the Veteran’s widow, who is the appellant’s mother, on December 4, 2012. This letter further indicated that the surviving spouse and her dependents might be eligible for DEA benefits. The letter also indicated that VA pamphlet 22-73-3, “Summary of Education Benefits” had been enclosed and that this pamphlet explains the DEA benefits program. Additionally, the letter indicated that in order to make a claim for DEA benefits, the Veteran’s widow and/or her dependents should complete and return the enclosed Dependents’ Application for VA Education Benefits (VA Form 22-5490). In order for the appellant’s commencement date to be July [redacted], 1994, or the date that she turned 18 years of age, she must have filed her claim for DEA benefits within one year of the rating decision granting DEA benefits, as well as service connection for the cause of the Veteran’s death, or October 26, 2012. The record shows that the appellant first filed a claim for DEA benefits in a Request for Approval of School Attendance (VA Form 674), which was received by the AOJ on May 19, 2014. Additionally, she filed VA Forms 22-5490 on August 14, 2014, and September 5, 2014. As noted above, for the appellant to qualify for retroactive DEA benefits, VA must have received her original application for DEA benefits before October 26, 2013, or within one year of the AOJ’s decision granting service connection for the cause of the Veteran’s death. VA, however, did not receive the appellant’s application for DEA benefits until May 19, 2014, more than one year after the cut-off. See 38 C.F.R. § 21.4131(e). Accordingly, the Board finds that retroactive DEA benefits are not warranted. In her November 2014 notice of disagreement (NOD), the appellant indicated that her mother, the Veteran’s widow, was awarded dependency and indemnity compensation (DIC) benefits for a surviving spouse in December 2012. The appellant noted that her mother was awarded additional DIC benefits for the surviving spouse’s dependents, which included the appellant and her brother, in May 2014, and that the appellant was granted DIC benefits in July 2014 for her time in college. She made similar contentions in the July 2015 statement submitted with the Substantive Appeal to the Board (VA Form 9). Although the Board is sympathetic to the appellant’s contentions, it is bound by applicable law and regulations when determining a claim for VA benefits. Here, the regulatory criteria governing eligibility for DEA benefits under 38 U.S.C. Chapter 35 are specific, and the Board is bound by them. Pursuant to these criteria, there is no basis upon which to grant the appellant retroactive DEA benefits under Chapter 35. See 38 C.F.R. § 21.4131. Additionally, the appellant also contended in the July 2015 VA Form 9 that she was never provided with a written notice informing her of the right to elect the beginning date of her period of eligibility, and that she must elect a beginning date within 60 days of the written notice. However, the Board notes that such a written statement was only required to be sent to the appellant if the Veteran’s death occurred while the appellant was between the ages of 18 and 26 years. See 38 C.F.R. § 21.3041(i)(iii). As the record shows that the Veterans passed away when the appellant was 15 years old, VA was not required to send the appellant a written notice informing her of the right to elect her commencement date. In sum, the Board finds that the appellant simply is not eligible to receive retroactive educational assistance benefits under 38 U.S.C. Chapter 35 as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Where the law, rather than the facts, is dispositive, the benefit of the doubt provisions as set forth in 38 U.S.C. § 5107(b) (2012) do not apply. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Hodzic, Counsel