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, (& HadIt.Com);

I just received all of my daughter's documents which she received from the VARO Buffalo / Educational Benefits Office.

They are saying that I became permanently and totally disabled on May 30, 2002; however, I became eligible, and was paid by the VA, for benefits from 1998. She was in college from September, 1998 through May, 2002.

I need to appeal their decision since it took over "7-years" for the VA to approve my claim after my own appeals.

If anyone out there has any suggestions ...please feel free to post them to me. All input is welcome.

Berta: I will send the attachments to your personal email address, for your review, since the documents have all my daughter's personal information on them.

Thank you, in advance, for your cooperation in this matter; and I look forward to all replies.

Regards,

Sonny - (Vietnam veteran)

[BlakePaigeStone]

Berta, (and HadIt.Com);

Since I could not locate an email address to send the documents as an attachment, I had to try to transfer the scanned documents to my word program, and then copy & paste to this forum. It didn't transfer all the information properly, so please email me at BlakePaigeStone@hotmail.com

That way I can send the documents in a readable fashion if you are not able to make sense of the following information ...you may have to suggest another way that I can get the information to you.

I would like to put together an appeal to have my daughter submit directly ...from her New York location. Any help/suggestions that you can provide will be welcome. The attachment follows:

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Blake_Chap35.doc

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Thank you, in advance, for your help.

Regards,

Sonny

[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."

Right- this is the date that your dependents were eligble for Chapter 35 DEA.

The Feb 2008 VA letter says how your daughter could have elected the best beginning date-but without her response to that letter -they elected the July 26,2002 date.

However-your daughter wanted reimbursement for college tuitions she had paid between Sept 1998 and May 2002.

This hinges however on the actual date they declared you 100% or TDIU P & T.

The veteran in the BVA case you cited in a past post was 100% P & T back to 1999.

Therefore his dependent's eligibility was established back to that date.

"They are saying that I became permanently and totally disabled on May 30, 2002; however, I became eligible, and was paid by the VA, for benefits from 1998. She was in college from September, 1998 through May, 2002."

They do not even consider Chaper 35 entitlement until a veteran is declared 100% or TDIU P & T.

Pete has a much different view of this here-I suggest you contact him-

because I have carefully read the attachments and feel their decision was correct.

I sure don't know it all-and Pete can can reached by email.

This recent BVA decision explains better what the VA's letters regarding on the Chapter 35 entitlement date and the actual regulations they used are in this decision:

http://www.va.gov/vetapp08/files1/0808306.txt

[BlakePaigeStone]

Pete 53;

Berta suggested that I request that you provide any input on the updated information which I provided in my latest posting.

Thank you, in advance, for your help. I'm also open to hearing from anyone that may have any information that will help in my planned appeal for my daughter's retro-active Chapter35 educational benefits.

Regards,

Sonny

[Pete53]

First of all I pretty much agree with Berta but there is still an outside chance as Chapter 35 people are much more lenient than VARO is with Veterans and spouses.

However, the first answer is almost always no and than she appeals and has a chance. In many cases if she talks to a Counselor they actually act as her advocate and a Board of VA employees will make a decision.

All I know is I had the two date problem for my son plus his age and he got Chapter 35. It basically boiled down to your Daughters same problem except for one large difference. I was not service connected so he did not go to school and when I was several years had passed. He was able to finally be waivered on age and apply the date of notice as opposed to the date of service connection.

Still she should try its a lot of money and could help her pay off debts.

So once denied appeal it. They will ask for a letter explaining why they should make an exception and than you usually hear back sometime soon. If denied here can still appeal and ask for a Hearing but only 30 days to do this from notice.

Good Luck

Edited June 21, 2008 by Pete53

[BlakePaigeStone]

Pete, Berta, and HadIt.Com;

Thanks for all your input, to me, on the "Retro-active Chapter-35" issue that I posted in June, 2008. I just wanted to update all of you that my daughter recently received her denial decision and Statement of the Case ...which she appealed this week.

Her appeal argument stating why she feels that the VARO-Buffalo/Educational Department's initial denial was wrong ...went something like this:

Entitlement to retroactive Chapter 35 benefits ...due to the "very specific and rare kind of error" resulting from the circumstances of the veteran's permanent and total rating delays/award chronology ...which led to a clear and unmistakable error in establishing veteran's permanent and total effective date.

We felt as though she needed to approach the appeal from a different angle since the circumstances of my P&T rating award was packaged with my initial retro-active award ...but given different effective dates. The whole thing started when the VARO-Newark, NJ stopped processing my claim, in 1995, to ship my VA file to the VARO-Atlanta, GA; and then Atlanta stopped processing my claim, again, to ship my VA file to the VAROIC-Philadelphia, PA. There were no efforts by the VA to consider the completed work done by the other VAROs ...which caused each regional office to start my claim over "from scratch" each time it was moved! The moves cost me seven, (7), years in processing time and award effective dates ...due to each office starting all over again.

I'm sure that I am not the only veteran that has experienced this same problem; so, I welcome any, and all, input from the HadIt.Com community about my daughter's chances of being granted her benefits.

Thank you, in advance, for all your consideration in this matter.