tdiu Chapter 35 Retro-active Benefits "?"

[BlakePaigeStone]

Dear HadIt.Com;

My daughter graduated from University of Maryland before she knew I was eligible for Chapter 35 benefits. She finished school in 2001. I wasn't awarded my Ch. 35 benefits until 2001/2002.

She still owes substantial student loans that could be paid-down with the benefits if awarded. Can anyone tell me if she has a leg to stand on if she pursues the appeal process under these circumstances; "Please offer any, and all, help!"

I have come across the following BVA decision which granted a claimant benefits after her graduation:

Citation Nr: 0514702 Decision Date: 05/31/05 Archive Date: 06/08/05 DOCKET NO. 04 03-295A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an award of Dependents' Educational Assistance (DEA) under Chapter 35, Title 38, of the United States Code, for a period of enrollment at Concordia University beginning in September 1999. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. A. Mishalanie, Associate Counsel INTRODUCTION The veteran had active service from January 1967 to August 1969. The appellant is his daughter. This case comes to the Board of Veterans' Appeals (Board) from a December 2002 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which granted the appellant's claim for DEA benefits for the Bachelor of Fine Arts program at Concordia University and assigned an effective date of July 29, 2002. She appealed for an earlier effective date. Subsequently, in February 2003, the RO assigned an effective date of September 5, 2000. She continued to appeal, seeking DEA benefits from September 1999. FINDINGS OF FACT 1. The appellant is the veteran's daughter. 2. In September 2002, the RO notified the veteran that he had been granted a permanent and total disability evaluation, retroactively effective from July 1999. 3. The RO's grant established the appellant's basic eligibility for DEA benefits, also retroactively effective from July 1999. 4. In September 2002, the appellant filed an application for DEA benefits. In December 2002, the RO received an Enrollment Certification establishing that she pursued a Bachelor of Fine Arts Degree at Concordia University in Quebec, Canada, from September 1999 to May 2002. 5. In July 2003, VA informed the veteran that the Bachelor of Fine Arts program at Concordia University had been approved for receipt of DEA benefits. CONCLUSION OF LAW The criteria are met for DEA benefits under the provisions of Chapter 35, Title 38, of the United States Code, for a period of enrollment at Concordia University beginning in September 1999. 38 U.S.C.A. §§ 3501(a)(1), 3510, 5113 (West 2002); 38 C.F.R. § 21.3021(a)(1) (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act (VCAA) The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, 5126 (West 2002), became effective on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2004). The VCAA and implementing regulations eliminated the requirement of submitting a well-grounded claim, and provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The VCAA and implementing regulations also require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 38 U.S.C.A. § 5103(a) (West 2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 186- 87 (2002). Since the Board is granting the appellant's claim, in full, there is no need to discuss whether there has been compliance with the VCAA because, even if there has not been, it is merely inconsequential. Cf. Bernard v. Brown, 4 Vet. App. 384 (1993). Factual Background In September 2002, the RO notified the veteran that it had granted his claim for a permanent and total disability rating based on individual unemployability (TDIU), retroactively effective from July 1999. The letter also notified him that DEA eligibility was also established from July 1999. A few weeks later, in September 2002, the appellant filed a claim for DEA benefits for courses taken at Concordia University located in Quebec, Canada. In December 2002, she submitted an Enrollment Certificate (VA Form 21-1999), confirming her attendance in the Bachelor of Fine Arts Program at Concordia University from September 1999 through May 2002. An e-mail in the claims file from Education Services to the RO indicates the approval date for the Bachelor of Fine Arts Program at Concordia University had been changed to July 29, 2000. The email states, "the foreign approval guys weren't willing to go back further than that but this should help." A handwritten note on the email indicates that an award date of September 2000 was chosen for the appellant by the RO. The July 2003 statement of the case (SOC) indicates an approval request for the Bachelors of Fine Arts program at Concordia College was received on July 29, 2002. Therefore, the RO reasoned that DEA benefits were not payable before July 29, 2001, one year prior to the date of receipt of the approval request. See 38 C.F.R. § 21.4131(d)(iv) (2004). The RO further noted that the effective date of July 29, 2000 for course approval was erroneously assigned and, therefore, the appellant had erroneously received DEA benefits from September 2000 through May 2001. The RO stated, however, that those benefits would not have to be repaid since they were paid due to an administrative error on the part of VA. Governing Statutes and Regulations A child of a person who has a total disability permanent in nature resulting from a service-connected disability, or who died while a disability so evaluated was in existence is eligible for DEA benefits. 38 U.S.C.A. § 3501(a)(1) ( West 2002). With some limited exceptions, an eligible person is not entitled to an award of DEA benefits until she is 18 years old or completes secondary schooling, whichever occurs first. 38 U.S.C.A. 3511(a) (West 2002). Effective November 1, 2000, Congress amended the law governing, in pertinent part, effective dates for awards of DEA benefits. See Veterans Benefits and Health Care Improvement Act of 2000 (Act) Pub. L. No. 106-419, §113, 114 Stat. 1832 (2000) (codified at 38 U.S.C.A. § 5113 (West 2002)). Section 5113 applies to initial applications that are received on or after the date of enactment of the amendment, or which are pending with the Secretary of VA at that time. In this case, the appellant's application was received after the date of enactment, so this law applies to this appeal. See VAOGCPREC 7-2003 (Nov. 19, 2003). The law provides that, when determining the effective date of an award under Chapter 35 based on an original claim, the Secretary may consider the eligible individual's application as having been filed on the eligibility date of the individual if the eligibility date is more than one year before the date of the initial rating decision. 38 C.F.R. § 5113(B)(1) (West 2002). An individual is eligible if she submits to the Secretary an original application for educational assistance under Chapter 35 of this title within a year of the date that the Secretary makes the rating decision, claims such educational assistance for pursuit of an approved program of education during a period preceding the one-year period ending on the date on which the application was received, and would have been entitled to such assistance if the application had been submitted on the individual's eligibility date. 38 U.S.C.A. § 5113(:D(2) (West 2002). When, after considering all information and evidence of record, there is an approximate balance of positive and negative evidence as to any material issue, VA shall give the claimant the benefit of the doubt. 38 U.S.C.A. § 5107( (West 2002). See also Dela Cruz v. Principi, 15 Vet. App. 143, 148-49 (2001) ("the VCAA simply restated what existed in section 5107 regarding the benefit-of-the-doubt doctrine"). Legal Analysis The appellant had already turned 18, completed her secondary schooling, and was enrolled in the Bachelor of Fine Arts program at Concordia University at the time the veteran's TDIU became effective in July 1999. So she first became eligible for receipt of DEA benefits in July 1999. 38 U.S.C.A. § 3501(a)(1)(A)(ii) (West 2002), 38 C.F.R. § 21.3041((2)(ii) (2004) (If the effective date of the permanent and total disability rating occurs after the child has reached 18, but before he or she has reached 26, the beginning date of eligibility will be the effective date of the rating or the date of notification to the veteran from who the child derives eligibility, whichever is more advantageous to the eligible child). Obviously, however, she was unaware that she was eligible for DEA benefits until the RO made its decision regarding her father's claim for a TDIU and notified him in September 2002. Within a matter of weeks after learning she was eligible, she filed her claim for DEA benefits. Before § 5113 was amended, the law only allowed an award of DEA benefits dating back one year prior to when the appellant filed her claim - which in this case would have been September 2001. This situation is one of the precise reasons Congress amended § 5113 - to correct an inherent unfairness that results when a claimant does not learn of her eligibility for DEA benefits until years later due to the administrative delay in processing the claim. Indeed, it was not her fault it took VA over 3 years to adjudicate and notify her father that he had been granted a permanent and total disability rating. So, as long as she meets all the requirements of the amended version of § 5113, she is entitled to an effective date for an award of DEA benefits that corresponds with her eligibility date. As explained further below, the Board finds that she does in fact meet all the requirements under § 5113. The appellant submitted her original application for DEA benefits within a year after the RO made its rating decision. In fact, she filed her application within a matter of weeks after her father was notified of DEA eligibility. The claim was for an approved program of education during a period preceding the one-year period ending on the date on which the application was received - meaning prior to September 2001. And finally, she would have been entitled to DEA benefits had she submitted such an application on her eligibility date (i.e., in July 1999). See 38 U.S.C.A. § 5113 (West 2002). The Board notes that the RO, in its SOC, reasoned that because the Bachelor of Fine Arts program at Concordia University was not an approved program at the time the appellant became eligible for DEA benefits, she was not entitled to an effective date any earlier than the date course approval was requested. According to a July 2003 letter from the Director of Education Service to the veteran, programs of education at Concordia University were approved on a case-by-case basis - meaning approval was sought for each student separately. Concordia University had sought approval from VA for the Bachelor of Fine Arts program on behalf of another student in July 2002 and was granted such approval. In other words, the appellant was not in pursuit of an approved program of education prior to July 2002, because the Bachelor of Fine Arts program at Concordia University had not yet been approved in accordance with 38 C.F.R. § 21.4260 (2004). But such an interpretation of § 5113 thwarts the legislative intent behind the amendments to this statute and creates a catch-22 for eligible persons. Essentially, this interpretation would require an eligible child who had attended courses at a foreign university to have the ability to travel back in time and request course approval before she even knew she was eligible to receive DEA benefits. The Board disagrees with this interpretation. While it is true that Concordia University is a foreign institution requiring VA approval under 38 C.F.R. § 21.4260 for DEA benefits, it is clear this approval has been granted by VA for the Bachelor of Fine Arts program. And presumably if the appellant had filed her application and her request for course approval on her eligibility date, this program at Concordia University would have been approved at that time. The Board finds no reason to doubt otherwise. Given the foregoing, the Board concludes that the appellant is entitled to an award of DEA benefits under the provisions of Chapter 35, Title 38, United States Code for a period of enrollment at Concordia University beginning in September 1999. ORDER The claim for an award of DEA benefits under the provisions of Chapter 35, Title 38, of the United States Code, for a period of enrollment beginning on September 7, 1999 at Concordia University, is granted, subject to statutory and regulatory provisions governing the payment of monetary benefits. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs

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Thank you, in advance for anyone out there with information that can help.

***"Sonny" E. T. English - Vietnam Veteran"***

[BlakePaigeStone]

Berta, (and HadIt.Com);

Thanks for responding again so soon concerning my daughter's Chapter 35 issue.

I am in the process of getting all of your questions answered; as ...my daughter has to copy and mail all of the correspondence she's received from the VA/DEA - Buffalo. If she can't scan & email, then she'll have to send it to me via USPS. She is living in New York, and I'm currently in the Philippines for a couple of years.

I will be back in touch with all your answers shortly! Thanks for your help.

[Berta]

Blake -you should have in your records what I was talking about.

The earliest date for entitlement for her Chapter 35 is the date the VA found you , as the EED, as 100% P & T.

That is the entitlement date.It should be stated in your own award letter.

The eligibility date is different-she is entitled to your EED under Chap 35 as long as she is eligible- usually up to age 26.

If you Nodded that date and that claim is still pending- and they give you a more favorable 100% P & T EED and this puts her entitlement date back further-and could cover some her her past college tuition-

possibly--

Since she is in NY maybe should email VA EDu and even ask for a hearing-

Did she NOD the entitlement date they gave her when they sent her a Certificate of Eligibility?

It is almost the same as what I mentioned as to my daughter-in a way -

the VA gave her the wrong period of eligibility-the entitlement date was correct (except the VA didnt send her a crystal ball either-maybe she would have went to college then instead of joining the military if they did)

but we could not NOD the Entitlement date-my AO claim when it succeeds will alter all of this however-

but she could NOD the eligibility date-

Although I prepared the NOD for her-she signed it and sent it in with the evidence and added the actual regs-

They awarded on the NOD in about 3 weeks-they are much faster than a regular claim-

So If your daughter Nodded the decision on her Chap 35 within one year of receipt--all she needs to focus on is their Statement of the Case to see what errors they might have made in the award.

Is she did not NOD anything they sent that she didnt like -within the year NOD time frame-I dont know what approach she should use- and maybe should try to find a rep up here in NY who has some experience with Chapter 35.

Chapter 35 decisions can be Nodded and appealed like any other claim with the VA within the same one year appeal period in which to file the NOD.

By the claimant.

I only wrote the NOD for my daughter after we discussed this all by phone.She already had the evidence.

Edited April 10, 2008 by Berta

[BlakePaigeStone]

Berta;

I just wanted to add the fact that I was originally awarded 30% in 1998, retro-actively; and then ...when I received my award, on June 1, 2002, it was increased to 70% ...and I was granted TDIU w/P&T. So, my eligibility for Chapter 35 wasn't until 2002.

I am still waiting for the VARO-Buffalo/DEA denial documentation from my daughter before I can provide exact information to you about the claim denial. She has not taken any further action on this issue as yet. I have asked her to wait until I'm able to read the letter(s) from VARO-Buffalo/DEA.

She did tell me that they told her they would only go back one year; but I don't exactly know, as yet, what that year was from ...my eligibility date, or the date she filed the claim ...which was in October, 2007.

I know that it is all still a little vague, however, I intend to stay with this thing until it's as clear as a bell! Thanks for hanging in there with me on this. I will be in touch with more information as soon as I get it ...ok?!

[Philip Rogers]

Her eligibility date should be the effective date you became P&T.

pr

Berta;

I just wanted to add the fact that I was originally awarded 30% in 1998, retro-actively; and then ...when I received my award, on June 1, 2002, it was increased to 70% ...and I was granted TDIU w/P&T. So, my eligibility for Chapter 35 wasn't until 2002.

I am still waiting for the VARO-Buffalo/DEA denial documentation from my daughter before I can provide exact information to you about the claim denial. She has not taken any further action on this issue as yet. I have asked her to wait until I'm able to read the letter(s) from VARO-Buffalo/DEA.

She did tell me that they told her they would only go back one year; but I don't exactly know, as yet, what that year was from ...my eligibility date, or the date she filed the claim ...which was in October, 2007.

I know that it is all still a little vague, however, I intend to stay with this thing until it's as clear as a bell! Thanks for hanging in there with me on this. I will be in touch with more information as soon as I get it ...ok?!

[Berta]

"before I can provide exact information to you about the claim denial"

"She has not taken any further action on this issue as yet"

She only has one year from the date of the last letter to formally NOD that part of their decision she disagreed with.

[Pete53]

If they only pay 1 year retro she should appeal the decision as it is not her fault it took VA so long to make your award. Believe it or not the Chapter 35 VA is pretty lenient once it goes the administrative route.

Your Daughter should be eligible for back pay to the effective date of you award provided that she followed a degree plan and maintaing a C average in courses.

Good Luck

Do not take no for an answer.