Citation Nr: 19190856 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 14-39 424 DATE: December 3, 2019 ORDER Entitlement to an effective date of June 10, 2008, but no earlier, for the award of basic eligibility to dependents' educational assistance (DEA) benefits pursuant to 38 U.S.C. Chapter 35 is granted, subject to controlling regulations governing the payment of monetary awards. FINDING OF FACT Effective June 10, 2008, the Veteran has a total disability rating. CONCLUSION OF LAW The criteria for an effective date of June 10, 2008, but no earlier, for the award of eligibility to DEA benefits have been met. 38 U.S.C. §§ 3501, 3510, 5113; 38 C.F.R. §§ 3.340(b), 3.807, 21.3021. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1971 to October 1980. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2018 rating decision. In December 2018, the Board granted an effective date of February 10, 2017 for the award of eligibility to DEA benefits. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2019 Order, the Court approved a Joint Motion for Partial Remand (JMPR) which vacated that part of the December 2018 Board decision which denied an effective date earlier than February 10, 2017 for the award of eligibility to DEA benefits. The JMPR remanded the issue for further actions in accordance with its directives, to include providing adequate reasons and bases for the Board’s findings and conclusions pertaining to the proper effective date for the award of eligibility to DEA benefits. Entitlement to an earlier effective date for the award of basic eligibility to DEA benefits pursuant to 38 U.S.C. Chapter 35. For the purposes of educational assistance under 38 U.S.C., Chapter 35, the child or surviving spouse of a veteran will have basic eligibility if the following conditions are met: (1) The veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran’s death; or (4) the veteran died as a result of a service-connected disability. 38 U.S.C. §§ 3501, 3510; 38 C.F.R. §§ 3.807(a), 21.3021. Except as provided in subsections (b) and (c), effective dates relating to awards under Chapters 30, 31, 32, and 35 of this title or Chapter 106 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation. 38 U.S.C. § 5113. In this case, the December 2018 Board decision awarded a total rating based on individual unemployability (TDIU), effective June 10, 2008. The earlier effective date for the award of a TDIU was based on the Veteran’s service-connected bipolar disorder. The Board’s decision also awarded a total (100 percent) rating for bipolar disorder, effective February 10, 2017. In light of the above, the Board finds that the evidence reflects that the Veteran has been adjudicated to have permanent and total disability as of June 10, 2008, the effective date of the award of a TDIU. As noted above, the Veteran was awarded a TDIU due to impairments associated with his service-connected bipolar disorder. Also, the evidence shows that the impairment caused by the disability is reasonably certain to continue throughout the life of the Veteran. Specifically, the impairment due to the disability has continued steadily since 2008 to present, as shown by the Board’s award of an increased (100 percent) rating for the Veteran’s service-connected bipolar disorder, effective February 10, 2017. Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. 38 C.F.R. § 3.340 (b). Based on the above, the Board finds that the Veteran is entitled to an effective date of June 10, 2008 for the award of eligibility to DEA benefits. 38 U.S.C. §§ 3501, 3510; 38 C.F.R. §§ 3.807 (a), 21.3021. Further, because the Veteran has not been shown to be in receipt of a total disability rating prior to June 10, 2008 and the evidence does not reflect any basis other than the TDIU and service-connected bipolar disorder for which basic eligibility for DEA benefits would be warranted, entitlement to basic eligibility to DEA benefits cannot be granted prior to this date. As such, VA regulations do not provide for an effective date earlier than the date the Veteran was awarded a TDIU (i.e., June 10, 2008). Brian J. Elwood Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Garrett Morales, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.