Citation Nr: 22016187 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 15-35 189A DATE: March 21, 2022 ORDER Entitlement to retroactive payments for Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code, (Chapter 35) prior to March 12, 2013 is denied. FINDING OF FACT The appellant did not submit a claim for DEA benefits within one year of receiving the June 29, 2012 notice of the rating decision, which was issued in May 2012, and which awarded service connection for the cause of the Veteran's death, a retroactive permanent and total rating, and entitlement to DEA benefits. CONCLUSION OF LAW The criteria for retroactive payment of DEA benefits prior to March 12, 2013 have not been met. 38 U.S.C. §§ 3512, 5113; 38 C.F.R. §§ 21.1033, 21.3030, 21.3041, 21.4131. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1969 to December 1973 in the Navy and from December 1978 to June 1995 in the Air National Guard. He died in July 1998. The appellant is his surviving spouse. The appellant originally requested a Board hearing via videoconference in the October 2015 VA Form 9, Appeal to the Board. However, she withdrew the request for a Board hearing in a January 2022 written statement. Accordingly, the request for a hearing is considered withdrawn. See 38 C.F.R. § 20.702(e). The appellant contends that she should receive retroactive payments for DEA benefits for her educational pursuits from January 2003 to December 2007. For example, in the October 2015 VA Form 9, she asserted that she submitted her application for DEA benefits within one year of receiving notification of the rating decision that granted entitlement to DEA benefits when she submitted the March 2014 Dependents' Application for VA Education Benefits (VA Form 22-5490). Basic eligibility for Chapter 35 benefits can be established in several ways, including being the dependent, spouse, or a surviving spouse of a veteran who: (1) 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. The appellant's basic eligibility for DEA benefits as the Veteran's surviving spouse is not in dispute as she has been found eligible for these benefits. 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). 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 such 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 record shows that during his lifetime, the Veteran filed a claim for service connection for chronic lymphocytic leukemia, which was denied by the Regional Office (RO). The record shows that in July 1998, the Veteran died due to this disease, which was subsequently added to the list of presumptive diseases associated with herbicide exposure in the Republic of Vietnam. Thus, in 2012, the Seattle, Washington (RO) conducted a special review of the Veteran's claims file pursuant to Nehmer v. United States Department of Veterans Affairs for retroactive payment purposes following the Veteran's death. See 38 C.F.R. § 3.816; see also Nehmer v. U.S. Veterans Admin., 32 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. U.S. Veterans Admin., 32 F. Supp. 2d 1175 (N.D. Cal 1999) (Nehmer II); Nehmer v. Veterans Admin. of the Gov't of the U.S., 284 F.3d 1158 (9th Cir. 2002) (Nehmer III); Nehmer v. U.S. Veterans Admin., 494 F.3d 846 (2007) (Nehmer IV). In a May 2012 rating decision, the RO granted service connection for chronic lymphocytic leukemia associated with herbicide exposure and assigned a 100 percent disabling from September, 28, 1995, until the date of the Veteran's death, for the purpose of entitlement to retroactive benefits. This rating decision also granted service connection for the cause of the Veteran's death for retroactive benefits purposes. Last, this rating decision established basic eligibility to DEA benefits to the Veteran's dependents, including the appellant, from either the date of the 100 percent disability rating or the date of the Veteran's death. The record shows that the appellant was notified of this rating decision by a June 29, 2012 letter, which was sent to her address and was not returned as undeliverable by the United States Postal Service (USPS). The Board further notes that the record, including the January 2022 correspondence from the appellant, shows that she still resides at the same address as the address where the June 2012 notification letter was sent. The record shows that after the appellant submitted a December 2013 Application for DIC, Death Pension, and/or Accrued Benefits (VA Form 21-524EZ), the Agency of Original Jurisdiction (AOJ) issued a January 2014 rating decision confirming and continuing the award of service connection for the cause of the Veteran's death and the appellant's basic eligibility to DEA benefits from July 22, 1998. Thereafter, the appellant submitted for the first time a claim for VA education benefits in the form of a VA Form 22-5490, which was received by VA on March 12, 2014. Additionally, she submitted evidence showing that she pursued a course of study during numerous semesters from January 2003 to December 2007 at Nova Southeastern University. In correspondence associated with the March 2014 VA Form 22-5490, as well as in numerous statements throughout the appeal, the appellant seeks entitlement to DEA benefits for retroactive payment purposes for this course of study at Nova Southeastern University. She contends that she submitted the March 2014 VA Form 22-5490 within one year of notification of the January 2014 rating decision that confirmed and continued the award of service connection for the cause of the Veteran's death and the appellant's basic eligibility to DEA . Given this evidence, the Board finds that entitlement to retroactive payment of DEA benefits under Chapter 35 for the course of study from January 2003 to December 2007 must be denied, as the appellant did not file a claim for education benefits within one year of notice of the May 2012 rating decision, which granted DEA benefits since either 1995 or 1998. 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). Accordingly, VA cannot pay for benefits earlier than one year prior to the March 12, 2014 VA Form 22-5490. 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, or grants service connection for the cause of the veteran's death. See 38 U.S.C. § 5113(b)(2)(A), (b)(3)(C); 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 from January 2003 to December 2007, the appellant must have filed her claim for DEA benefits within one year of the notice of the initial rating decision granting entitlement to DEA benefits. Here, that date would be within one year of June 29, 2012, which was the date of the notice of the May 2012 rating decision. See 38 C.F.R. § 21.4131(e). However, as noted above, the record shows that the appellant first filed a claim for DEA benefits in the VA Form 22-5490 that was received by VA on March 12, 2014. Although the Board is sympathetic to the appellant's contentions that she submitted an application within one year of the January 2014 rating decision, this rating decision was not the initial rating decision that established service connection for the cause of the Veteran's death or the service-connected total disability permanent in nature for the Veteran's chronic lymphocytic leukemia. 38 U.S.C. § 5113(b)(3). The Board 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 payment of DEA benefits under Chapter 35 prior to March 12, 2013. For the appellant to qualify for retroactive payment of DEA benefits for the course of study from January 2003 to December 2007, VA must have received her original application for DEA benefits within one year of the AOJ's notice of the initial rating decision establishing entitlement to DEA benefits. VA, however, did not receive the appellant's application for DEA benefits until March 12, 2014, which is more than one year after the cut-off date from the June 29, 2012 letter. See 38 C.F.R. § 21.4131(e). Accordingly, the Board finds that VA is unable to pay the requested retroactive DEA benefits under Chapter 35 to the appellant. In sum, the Board finds that the appellant is not eligible to receive compensation for DEA benefits under Chapter 35 earlier than one year prior to the March 12, 2014 VA Form 22-5490 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.