Citation Nr: 20021177 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 18-14 247A DATE: March 24, 2020 ORDER Entitlement to compensation for Dependents’ Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35 (Chapter 35) prior to June 3, 2014, is denied. FINDINGS OF FACT 1. A May 15, 2014, rating decision granted eligibility to DEA benefits, effective August 1, 2013, because the Veteran had a total service-connected disability, which was permanent in nature since that date. The Veteran was notified of this decision by a June 3, 2014, letter. 2. The appellant, who is the Veteran’s adult daughter, was academically enrolled in a course of study beginning on March 24, 2014. 3. The appellant applied for DEA benefits for the first time in a Dependents’ Application for VA Education Benefits (VA Form 22-5490), which was received by VA on September 30, 2016. 4. In a November 2016 letter, the Agency of Original Jurisdiction (AOJ) informed the appellant that she could choose the beginning date of the eligibility period to receive DEA benefits between May 15, 2014, and June 3, 2014, or any date in between those two dates. The letter stated that the AOJ automatically chose May 15, 2014, as the date for the commencement of the eligibility period, but that the appellant must choose a date within 60 days of the date of the letter. This letter also informed the appellant that VA could not pay benefits for more than one year prior to the date VA received the appellant’s application for DEA benefits, which was received on September 30, 2016. The letter also informed the appellant that the beginning date cannot be changed once she chose it. The letter further informed the appellant that she should contact VA, in writing, if she believed that the AOJ was wrong, and the appellant was provided with a VA Form 4107, which enumerated her rights to appeal the AOJ’s decision. 5. In a subsequent November 2016 statement, the appellant chose June 3, 2014, as the beginning date for her DEA benefits. CONCLUSION OF LAW The criteria for entitlement to compensation for DEA benefits under Chapter 35 prior to June 3, 2014, have not been met. 38 U.S.C. §§ 3500, 3501, 3512, 3513, 5113, 7104; 38 C.F.R. §§ 21.3020, 21.3021, 21.3040, 21.3041, 21.4131. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty from September 1983 to July 1986, from November 1990 to August 1991, and from April 1996 to July 2013. The appellant is his adult daughter. The appellant requests that VA compensate or pay for her training for approximately two months prior to June 3, 2014. Specifically, she contends that VA should pay for her training or classes starting from March 24, 2014, because the Veteran has had a permanent and total service-connected disability since August 1, 2013. 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, whichever is the earlier date. 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). In that case, the child may elect the beginning date of his or her period of eligibility as set forth in 38 C.F.R. § 21.3041(i). A child may elect the beginning date of his or her period of eligibility but must do so no later than the end of the 60-day period beginning on the date on which VA provides written notice of the opportunity to make such election. 38 U.S.C. § 3512(a)(3)(B); 38 C.F.R. § 21.3041(i). The child can elect as a beginning date the effective date of the permanent and total rating, the date VA notifies the Veteran of the Veteran’s permanent and total rating, or any date in between. The period of eligibility ends the earlier of the date the Veteran is no longer rated permanent and total disabled, or eight years after the beginning date the child elects. 38 C.F.R. § 21.3041(a)(2)(ii). In order to receive benefits under Chapter 35, a claimant must file an application as prescribed by the Secretary. 38 U.S.C. § 3513; 38 C.F.R. §§ 21.1030, 21.3030. The general rule with respect to the commencing date for payment of Chapter 35 benefits, where a person eligible to receive educational assistance under Chapter 35 enters into training and the award is the first award of educational assistance for the program of education the eligible person is pursuing, is that the commencing date can be no earlier than one year before the date of the claim for benefits. 38 C.F.R. §§ 21.1029(b), 21.3130(e), 21.4131(d)(1). A potential exception to this rule is set out at 38 U.S.C. § 5113, which states the Secretary may consider the individual’s application as having been filed on the eligibility date of the individual in certain circumstances. 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). The facts are not in dispute. In a rating decision dated May 15, 2014, the AOJ granted eligibility to DEA benefits to the Veteran’s dependents, effective August 1, 2013, because the Veteran had a total service-connected disability, which was permanent in nature, since that date. The Veteran was notified of this decision by a June 3, 2014, letter. The record shows that the appellant was twenty-two years old at the time of the effective date for the grant of a total and permanent disability and at the time of the June 2014 notification. The record also shows that the appellant was academically enrolled in a course of study beginning on March 24, 2014. The appellant applied for DEA benefits for the first time in a VA Form 22-5490, which was received by VA on September 30, 2016. Because the appellant was over eighteen years old but younger than twenty-six years old when the Veteran was granted a total and permanent disability rating, the AOJ informed the appellant that she could choose the beginning date of the eligibility period to receive DEA benefits in a November 2016 letter. The appellant was erroneously given the options of choosing between May 15, 2014, and June 3, 2014, or any date in between those two dates. This letter mistakenly stated that the effective date that the Veteran was rated as having a permanent and total service-connected disability was May 15, 2014, rather than August 1, 2013. A review of the record shows that the rating decision that granted the permanent and total disability rating was dated May 15, 2014. The letter further stated that the AOJ automatically chose May 15, 2014, as the date for the commencement of the eligibility period, but that the appellant must choose a date within 60 days of the date of the November 2016 letter. This letter also informed the appellant that VA could not pay benefits for more than one year prior to the date VA received her application for DEA benefits, which was received on September 30, 2016. The letter further stated that the appellant could not change the beginning date once she chose it. The letter also informed the appellant that she should contact VA, in writing, if she believed that the AOJ was wrong. Attached to this letter was a VA Form 4107, which informed the appellant of her rights to appeal the AOJ’s decision. The record shows that in response to the November 2016 letter, the appellant chose June 3, 2014, as the beginning date for her eligibility period for DEA benefits in a November 2016 statement. However, in December 2016, VA processed payments for DEA benefits since June 3, 2014, and sent a letter to the appellant telling her that VA could not pay for training she received before she became eligible for VA benefits on June 3, 2014. In a June 2017 telephone conversation, which was documented in a VA Form 119, Report of Contact, the appellant requested to change the beginning date of her eligibility period from June 3, 2014, to March 24, 2014. The AOJ sent her a letter in June 2017 telling her that VA cannot pay for training she received more than one year prior to her application for DEA benefits, i.e., prior to September 30, 2015. In the August 2017 Notice of Disagreement (NOD), the appellant stated that she did not know that she was required to apply for DEA benefits within a certain period of time after the Veteran separated from active duty in order to receive benefits since 2014 because she did not actively speak with her father. She stated that VA gave her the wrong dates to choose from when she was offered the choice to choose between May 15, 2014, and June 3, 2014, as the commencement date of her DEA benefits. She contended that several months prior to August 2017, VA allowed her sister, who is also the Veteran’s dependent, to choose August 1, 2013, as the start date of her DEA benefits because the Veteran was retired from service from that date. The Board notes that the record shows that in addition to separating from service the day before August 1, 2013, the effective date of the Veteran’s permanent and total disability is also this date. The appellant contended that she should not be denied compensation in DEA benefits from March 24, 2014, to June 2, 2014, due to a lack of communication between her and her father. She expressly noted that she was not seeking compensation for training prior to March 24, 2014. The appellant made very similar contentions in the March 2018 VA Form 9, Appeal to the Board, in which she again asserted that VA misinformed her of the date she was to select for the beginning of her DEA benefits. She asserted that she should have been able to select a date in August 2013. She stated that she did not understand why a May 2017 letter from VA would state that VA could not pay for her school classes prior to September 30, 2015, when VA had already paid her DEA benefits since June 3, 2014. She reiterated that she was requesting only that VA compensate her for DEA benefits for the approximately two months that she was enrolled in school prior to June 3, 2014. Given this evidence, the Board finds that entitlement to compensation for DEA benefits under Chapter 35 prior to June 3, 2014, is not warranted. Initially, the Board notes that the central distinction that must be made in the appellant’s case is the difference between the beginning date of the eligibility period to use DEA benefits and the beginning date when VA can pay for such benefits. The appellant requests that VA pay for an additional two months of courses she attended before June 3, 2014, but after March 24, 2014. As noted above, because the appellant was over eighteen years old at the time VA notified the Veteran that he had a total and permanent disability rating, which was also effective when the appellant was over eighteen years old, she was allowed to elect which date she wanted her period of eligibility for DEA benefits to begin. Unfortunately, the November 2016 letter provided the appellant with the wrong date as to when the Veteran’s total and permanent service-connected disability rating was effective. Rather than May 15, 2014, the effective date of the permanent and total disability rating was effective from August 1, 2013. After the appellant chose within 60 days of the November 2016 letter the beginning date of her eligibility period of June 3, 2014, the AOJ erroneously started paying her DEA benefits since that date. As stated above, the general rule with respect to the beginning date for payment of Chapter 35 benefits is that the beginning date can be no earlier than one year before the date of the claim for benefits. See 38 C.F.R. §§ 21.1029(b), 21.3130(e), 21.4131(d)(1). As noted in the November 2017 Statement of the Case (SOC), VA erroneously paid the appellant for training she received prior to September 30, 2015, which is one year prior to the date of her initial application for DEA benefits in September 2016; however, the SOC further noted that VA determined that the appellant would not incur a debt created from this overpayment of DEA benefits because this error was caused by VA. While an exception to this rule is set out in 38 U.S.C. § 5113, which states the Secretary may consider the individual’s application as having been filed on the eligibility date of the individual if that eligibility date is more than one year before the date of the initial rating decision, this exception applies only if, among other things, the individual seeking benefits submits an application within one year of the date that VA made the initial rating decision establishing the existence of the service-connected total disability permanent in nature of the person from whom such eligibility is derived. See 38 U.S.C. § 5113(b)(2)(A), (b)(3)(C)(ii); 38 C.F.R. § 21.4131 (e). Thus, in order for VA to pay the appellant DEA benefits for a course of study she undertook since March 24, 2014, or the date that the Veteran was granted a total and permanent disability rating on August 1, 2013, the appellant must have filed her claim for DEA benefits within one year of the notice of the rating decision granting DEA benefits, as well as a total and permanent disability rating from a service-connected disability, or, here, that date would be within one year of June 3, 2014. See 38 C.F.R. § 21.4131(e). The record, however, shows that the appellant first filed a claim for DEA benefits in a VA Form 22-5490, which was received by the AOJ on September 30, 2016. 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 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. For the appellant to qualify for retroactive DEA benefits prior to June 3, 2014, VA must have received her original application for DEA benefits by June 3, 2015, or within one year of the AOJ’s notice of the decision granting a total and permanent disability rating from a service-connected disability to the Veteran. VA, however, did not receive the appellant’s application for DEA benefits until September 30, 2016, which is more than one year after the cut-off date. See 38 C.F.R. § 21.4131(e). Accordingly, the Board finds that VA is unable to pay DEA benefits to the appellant prior to June 3, 2014. This must be frustrating to the appellant, and the Board recognizes this frustration. To the extent the appellant asserts that she relied on erroneous information provided by VA staff regarding her eligibility and commencement dates in the November 2016 letter, VA is not liable for her reliance on said erroneous information dispensed by VA. See Harvey v. Brown, 6 Vet. App. 416, 424 (1994). The United States Court of Appeals for Veterans Claims (Court) has held that inaccurate advice does not create any legal right to benefits where such benefits are otherwise precluded. See Shields v. Brown, 8 Vet. App. 346, 351 (1995). Likewise, the Court has held that erroneous advice given by a government employee cannot be used to estop the government from denying benefits. See McTighe v. Brown, 7 Vet. App. 29, 30 (1994). The Board notes that even though the appellant was provided with an incorrect commencement date for her eligibility period to use DEA benefits in the November 2016 letter, VA has given her a greater benefit by paying her DEA benefits since June 3, 2014, when in actuality, she is entitled only to such benefits since September 30, 2015. Thus, the appellant has benefitted from VA’s error. In sum, the Board finds that the appellant simply is not eligible to receive compensation for DEA benefits under Chapter 35 prior to June 3, 2014, 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) do not apply. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hodzic, 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.