Citation Nr: 21028848 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 15-01 453 DATE: May 12, 2021 ORDER Entitlement to compensation for Dependents' Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35 (Chapter 35) prior to November 26, 2012, is denied. FINDINGS OF FACT 1. A September 11, 2012, rating decision granted eligibility to DEA benefits to the Veteran's dependents, effective February 10, 2012, because the Veteran was assigned a permanent and total disability rating for his service-connected posttraumatic stress disorder (PTSD) since that date. The Veteran was notified of this decision by a September 17, 2012, letter. 2. The appellant, who is the Veteran's adult stepdaughter, was academically enrolled in a course of study for a degree in nursing at a university beginning on September 6, 2011. 3. The appellant applied for DEA benefits in a Dependents' Application for VA Education Benefits (VA Form 22-5490), which was received by VA for the first time on November 26, 2013, and the record does not show that she or her representative filed a formal or informal claim for DEA benefits prior to this date. 4. VA is unable to compensate the appellant for DEA benefits for school attendance prior to one year of VA's receipt of her claim for such benefits, or earlier than November 26, 2012. CONCLUSION OF LAW The criteria for entitlement to compensation for DEA benefits under Chapter 35 prior to November 26, 2012, have not been met. 38 U.S.C. §§ 503, 511, 512(a), 3500, 3501, 3512, 5113, 7104; 38 C.F.R. §§ 2.7(c), 3.155, 21.1033, 21.3020, 21.3021, 21.3040, 21.3041, 21.4131. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty from March 1969 to January 1973. The appellant is the Veteran's adult stepdaughter. The Veteran and appellant were scheduled to present testimony via videoconference during a hearing before a Veterans Law Judge in October 2018, but their representative agent requested that the hearing be postponed and rescheduled in a September 2018 statement. The hearing was rescheduled for October 2019. They were notified of the time and place of the hearing by an August 2019 letter. However, the appellant and Veteran failed to appear for the hearing, and they have not requested that the hearing be rescheduled or established good cause for the failure to appear. The hearing request is deemed withdrawn. See 38 C.F.R. § 20.704. The appellant requests an earlier effective date for the grant of compensation for DEA benefits of February 10, 2012, as that is the date that the Veteran was granted a permanent and total disability rating for his service-connected PTSD. Specifically, in numerous statements throughout the appeal, including in a January 2015 statement of accredited representative in appealed case (VA Form 646), the appellant's representative asserted that school documents related to the appellant for purposes of Chapter 35 education benefits were submitted to VA on August 24, 2011, and that these submissions should be considered an informal claim for DEA benefits. Thus, the representative asserts that an earlier effective date of February 10, 2012, the date that entitlement to DEA benefits arose, should be assigned for payment of such benefits to the appellant. The representative made very similar assertions in a March 2014 statement, in which the representative contended that the August 2011 informal claim for DEA benefits for the appellant was not responded to by VA until more than two years had elapsed, or on October 2, 2013, and that the date of the appellant's claim for such benefits should coincide with her initial enrollment at the university, which was in September 2011. The law regarding effective dates provides that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). This statutory provision is implemented by a VA regulation, which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. For claims specifically reopened on the basis of new and material evidence after a final disallowance under 38 C.F.R. § 3.156(a), the effective date is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. See Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). 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; 79 Fed. Reg. 57660-01. However, prior to the effective date of the amendment, VA law provided that any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant or her representative, may be considered an informal claim. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. Even with respect to informal claims, such informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (for claims received prior to March 24, 2015). In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the appellant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Basic eligibility for Chapter 35 benefits for the child of a veteran is established in one of several ways: (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. §§ 3500, 3501, 3510; 38 C.F.R. § 3.807. In this case, the appellant's eligibility for DEA benefits is not in question, as she was awarded such benefits due to her status as the child of a veteran who had a permanent total service-connected disability. The record shows that in a September 11, 2012, rating decision, the Veteran was assigned a permanent and total rating for PTSD and entitlement to DEA benefits, effective February 10, 2012, was established for his dependents. Notification of this decision and accompanying rights was issued to the Veteran on September 17, 2012. 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). The record shows that an effective date of September 11, 2012, was assigned for the appellant to commence using her benefits; however, the beginning date for use of DEA benefits is different than the date that VA is able to provide retroactive payment for such benefits. 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 his 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 record shows that the appellant was academically enrolled in a course of study for a nursing degree at a university beginning on September 6, 2011. Specifically, the Veteran submitted several pieces of documentation showing that the appellant was enrolled in such a course of study in October 2012, November 2012, and December 2012. However, this documentation was associated with claims file in connection with the Veteran's continued receipt of compensation for dependents, which included compensation benefits for the appellant. Specifically, in October 2012, the Veteran submitted a declaration of status of dependents (VA Form 21-686c), as well as the supporting documentation, showing that although the appellant was over 18 years old, she was enrolled in school. Likewise, in a letter dated December 3, 2012, the Veteran and appellant's representative submitted supporting documentation showing that the appellant was enrolled at a university. The subject of this letter indicated that the evidence was related to the Veteran's dependency claim. Overall, the record does not show that the appellant filed a claim for DEA benefits until she filed the VA Form 22-5490, which was received by VA for the first time on November 26, 2013. Specifically, although the representative has contended that a claim for DEA benefits and supporting documentation of the appellant's enrollment at a university were submitted in August 2011, and that this evidence should be considered an informal claim, a thorough review of the record does not show that any such evidence was submitted in August 2011. The Board notes that a decision on entitlement to DEA benefits was not issued until September 2012, and that entitlement to such benefits was established as of February 2012; thus, entitlement to compensation for DEA benefits cannot be established since September 2011. In fact, the record does not show that the appellant or her representative filed a formal or informal claim for DEA benefits prior to the VA Form 22-5490 received on November 26, 2013. While the record does include evidence as early as October 3, 2012, of the appellant's attending a university, a reasonable reading of this evidence, as well as the statements submitted by the representative at the time, shows that this was not an informal claim for DEA benefits for the appellant, but rather supporting evidence for compensation benefits based on the Veteran's dependents. See 38 C.F.R. § 3.155; see also Brokowski, 23 Vet. App. at 84. Based on the receipt of the initial claim for DEA benefits, which was on November 26, 2013, VA is unable to compensate the appellant for DEA benefits for school attendance prior to one year of VA's receipt of her claim for such benefits, or earlier than November 26, 2012. As explained in the August 2014 statement of the case, the law allows an exception for this regulation, whereby retroactive payment is allowed as far back as the effective date of the Veteran's rating decision that established entitlement to DEA benefits, provided that the rating decision was made more than one year after the effective date of the rating, and the appellant's claim for DEA benefits was received by VA within one year of the rating decision in question. 38 U.S.C. § 5113; 38 C.F.R. § 21.4131(e). However, this exception is not applicable to the appellant as the September 11, 2012, rating decision was not made more than one year after the effective date establishing entitlement to DEA benefits, which was effective as of February 10, 2012. 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 compensation 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 prior to November 26, 2012. For the appellant to qualify for compensation for DEA benefits prior to November 26, 2012, she must have filed a formal or informal claim for DEA benefits prior to November 26, 2013. Accordingly, the Board finds that VA is unable to pay DEA benefits to the appellant prior to November 26, 2012. This must be frustrating to the appellant, and the Board recognizes this frustration. In sum, compensation for DEA benefits under Chapter 35 prior to November 26, 2012, must be denied 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.