Citation Nr: A25035657 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 230330-337215 DATE: April 17, 2025 ORDER Entitlement to a beginning effective date for eligibility for Chapter 35 Dependents' Educational Assistance (DEA) benefits prior to December 7, 2020, is denied. FINDINGS OF FACT 1. In a December 7, 2020, rating decision, the Veteran was found to be permanently and totally disabled effective July 17, 2020, after the Appellant's eighteenth birthday, but before her twenty-sixth birthday, and the Appellant applied for Chapter 35 educational assistance benefits in December 2020. 2. In a January 2021 letter, the Appellant was informed of her right to choose a Chapter 35 DEA benefits beginning date of either July 17, 2020, December 8, 2020, or any date between those two dates. The Appellant was informed that if she did not make an election within 60 days, the beginning date for benefits would be December 7, 2020, the date of the rating decision establishing the permanent and total rating. 3. The Appellant did not inform VA of an election date for the beginning of Chapter 35 education benefits within 60 days of the January 2021 letter. CONCLUSION OF LAW The criteria for entitlement to a beginning effective date for eligibility for Chapter 35 DEA benefits prior to December 7, 2020, have not been met. 38 U.S.C. §§ 3500, 3501, 3512, 3513, 5113, 7104 (2024); 38 C.F.R. §§ 21.3020, 21.3021, 21.3040, 21.3041, 21.4131 (2024). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from December 1987 to September 2009. The Appellant is the Veteran's dependent child. The rating decision on appeal was issued in July 2022 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the March 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Appellant elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the July 2022 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Appellant would like VA to consider any evidence that was submitted that the Board could not consider, the Appellant may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Entitlement to a beginning effective date for eligibility for Chapter 35 DEA benefits prior to December 7, 2020. In general, Chapter 35 educational assistance is payable to a child of a veteran who has a total disability permanent in nature resulting from a service-connected disability. 38 U.S.C. § 3500 (2024); 38 C.F.R. § 21.3021 (2024). In this case, basic eligibility for Chapter 35 benefits is not in dispute. The Appellant is recognized as the child of the Veteran, and a rating decision dated December 7, 2020, found that basic eligibility for DEA benefits was established from July 17, 2020. Ordinarily, a child's period of eligibility for educational assistance benefits under Chapter 35 extends for the 8 years from the child's 18th to 26th birthdays. 38 U.S.C. § 3512(a); 38 C.F.R. § 21.3041(a). The commencement date of an award of educational assistance is generally not earlier than one year prior to the date of claim. See 38 C.F.R. § 21.4131. If the effective date of the veteran's initial permanent and total rating is after the child's 18th birthday and before her 26th birthday, as in this case, the child may elect the beginning date of her period of eligibility. 38 C.F.R. § 21.3041. In pertinent part, the child can elect as a beginning date: (1) the effective date of the permanent and total rating; (2) the date VA notified the veteran of the permanent and total rating; or (3) any date in between. 38 C.F.R. § 21.3041(a)(2)(ii). In such cases, VA is required to provide written notice to eligible children informing them of their right to elect the beginning date of their period of eligibility. The written notice must identify the beginning dates the child may choose from and must contain a statement that the child must make the election within 60 days of the date of the written notice. If the child does not elect a beginning date within 60 days of the VA's written notice informing the child of the right to elect a beginning date, the period of eligibility beginning date will be the date of the VA's decision that the veteran had a permanent and total disability. 38 C.F.R. § 21.3041(i)(2). Also, under certain circumstances, when determining the effective date of an award of Chapter 35 educational assistance benefits, VA may consider an otherwise eligible person's application as having been filed on her eligibility date, if that eligibility date is more than one year before the date of the initial rating decision. 38 U.S.C. § 5113 (b)(1); see 38 C.F.R. § 21.4031. However, the claimant must elect an effective date within 60 days of notification of the right to elect the beginning date of the period of eligibility as is outlined above. 38 C.F.R. § 21.3041 (i). In this case, the undisputed facts show that in December 2020, the Appellant filed Dependents Applications for VA Education Benefits (VA Forms 22-5490) for a program of education at the University of Washington in pursuit of a Bachelor of Arts degree in psychology with a minor in criminal justice. The Appellant noted that the beginning date of training was May 11, 2020. In January 2021, the AOJ notified the Appellant, in writing, that she was entitled to Chapter 35 DEA benefits and that she had 36 months remaining of full-time benefits. She was further informed that she must still elect the beginning date of her Chapter 35 benefits within 60 days and that she could choose a starting date from either the eligibility date of July 17, 2020 (the date the Veteran became totally disabled for VA purposes), December 8, 2020 (the date of notice of the award of Chapter 35 eligibility; the Board acknowledges that the AOJ made in error in writing December 8, 2020 and not December 7, 2020), or any date in between those dates. A caution note was included informing the Appellant that if she did not respond within 60 days choosing a commencement date for her benefits, the date of December 7, 2020 (the date of the rating decision awarding the Veteran a permanent and total rating), would be assigned. The Appellant does not contend nor does the evidence show that she responded within 60 days of the January 2021 notice letter electing a start date. In fact, the Appellant's response was received by VA via telephone call on October 4, 2022. The law specifically requires that an eligible individual elect a start date for Chapter 35 benefits within 60 days of being provided written notice of the right to elect the beginning date of the eligibility award; otherwise, the period of eligibility will begin on the date of VA's decision that the Veteran had a permanent and total disability. 38 C.F.R. § 21.3041(i). It is undisputed that the Appellant did not elect a start date within 60 days of the January 2021 notice. While the Board is sympathetic to the Appellant, it is bound by the law. There is simply no provision of law under which the Board may grant the Appellant's claim for retroactive DEA benefits prior to the effective start date of December 7, 2020. Consequently, the appeal must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Wendy Daknis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mountford, 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.