New 20 Year Time Limit On Dependents Education

[deltaj]

Could someone put up a link for the following Court of Veterans Appeals case: 07-0262 Darlene S. Cypert v. James B. Peake, MD., Secretary of Veterans Affairs decided January 2, 2009. First, let me state that the version of U.S. Code from 2006 shown online is different from the changes in 38 U.S.C. 3512 made in 2008 by Congress. The old version of 38 USC 3512 from 2006 makes it look like the 20 year time limit for dependents educational assistance is only available to survivors of veterans killed in the line of duty, but the new version may have been misquoted by the U.S. court of veterans appeals in the above case. The case quotes Public law 110-389 section 321 and states possibly incorrectly, "Congress recently amended [38 U.S.C] 3512 to authorize a 20 year delimiting period beginning on the date the veteran's disability was so determined to be a total disability permanent in nature, but only if the eligible person remains the spouse of the disabled person throughout the period." This case Cypert v. Peake quotes a portion of the Veterans Benefits Improvement Act of 2008, Pub. L. No 110-389, 321, 122 Stat. 4145 (2008. The court believes that Congress changed the law so that dependents have 20 years to use educational benefits not 10 years but if you look up public law 110-389 section 321 online you can't get the final law but the proposed text had a 20 year limit for dependents education of veterans who were rated permanently and totally disabled within 3 years of discharge. EVERY SPOUSE NEWLY MARRIED TO A TOTALLY DISABLED PERMANENT AND TOTAL VETERAN SHOULD READ THIS CASE. Darlene Cypert married the totally disabled veteran after more than 10 years had passed from the time he was notified that he was rated permanently and totally disabled and she was denied educational benefits because of that. On appeal she argued successfully that she didn't become an eligible person as defined in law until the date she married the veteran and the court agreed. WHEN REVIEWING THIS CASE AND CONSIDERING THE DELIMITING DATE OF EDUCATIONAL BENEFITS, DON'T FORGET ALSO THAT UNDER 38 U.S.C. 3512 IN THE PAST THERE HAS ALWAYS BEEN A PROVISION FOR EXTENSION BASED ON DISABILITY AND THAT THERE ARE PROVISIONS ON TIME LIMITS FROM THE DATE OF NOTIFICATION. UNDER THE OLD VERSION OF 38 U.S.C. 3512 REQUESTS FOR EXTENSION MUST HAVE BEEN DATED WITHIN 1 YEAR OF THE DELIMITING DATE FOR USE OF BENEFITS AND EVIDENCE SUPPORTING THE EXTENSION MUST BE RECEIVED ALSO. I presume the new version of 38 U.S.C. 3512 has similar provisions but the new law must be reviewed to be sure.

Edited January 21, 2009 by deltaj

[Berta]

http://www.gibill.va.gov/pamphlets/CH35/CH...let_General.htm

The VA web site says this:

"If the VA rated the veteran permanently and totally disabled with an effective date of 3 years from discharge a spouse will remain eligible for 20 years from the effective date of the rating. This change is effective October 10, 2008 and no benefits may be paid for any training taken prior to that date."

But the CAVC statement seems to say otherwise-

"Congress recently amended [38 U.S.C] 3512 to authorize a 20 year delimiting period beginning on the date the veteran's disability was so determined to be a total disability permanent in nature, but only if the eligible person remains the spouse of the disabled person throughout the period."

It seems to say that marriage for the 20 year period extends the delimiting dates of Chapter 35.

Chap 35 was successfully challenged and then unfortunately reversed -I think it was the Hix case-

as it stands now- most widows only use it when they get an official Chap 35 award- but the award is based on ten year period after death.

So if a vet dies in 1999 and the widow gets a posthumous 100% P & T award in 2008 -they also get Chapter 35 benefits-for

one YEAR- ten years after death.

I Nodded the last Chapter 35 letter I got advising me my entitlement ran out.

If my AO claim is successful they have to change the delimiting date.

Since the Chap 35 regs are almost based on a widow having a crystal ball ( meaning if the survivor pays for education themselves that they assume VA will reimburse with an eventual Chap 35 award.) these regs are very unfair-most widows cannot afford the thousands of dollars for college even if they feel that their 10O% P & T claim will be awarded and they could get reimbursed.

VA did ask me for any tuition bills I had prior to my Chap 35 college enrollment- but these were bills from college long ago-and did not fit into the ten year delimiting date.They could not reimburse me for that.

I will have to find a link for this case.

[Berta]

Here it is-

Reversed and remanded-

I was wrong-that wasnt Hix- it was the Ozer case- where a widow attempted to challenge the limiting dates under Chap 35.

http://search.vetapp.gov/isysquery/6daf250...d73ac8bc/1/doc/

I need to read this decision carefully-

If the date of 100% P & T posthumous determination began the Chap 35 delimiting date peiod- more survivors would use this benefit.

As it stands- for survivors-VA gives them the date of the veteran's death.

One more way for the VA to save money.

[Wings]

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I have been rated P&T for 10 years, this month. If I were to marry tomorrow, would my souce be eligible for Chapter 35, for the next 10 years? ~Wings

[Wings]

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I have been rated P&T for 10 years, this month. If I were to marry tomorrow, would my souce be eligible for Chapter 35, for the next 10 years? ~Wings

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kick

[Berta]

I don't see why not Wings- there might be an eligibility criteria -such as marriage for at least one year to the vet prior to applying for the Chap 35.

If the VA can add dependents when a vets remarries and might also have step children or chose to adopt the spouses children by a former marriage-then why would a new spouse not be eligible for Chap 35 based on the vet's record?

I tried to find more info at the BVA site and the main Education icon at VA but have not found anything yet that really answers this question-a good one.

[Wings]

I don't see why not Wings- there might be an eligibility criteria -such as marriage for at least one year to the vet prior to applying for the Chap 35.

If the VA can add dependents when a vets remarries and might also have step children or chose to adopt the spouses children by a former marriage-then why would a new spouse not be eligible for Chap 35 based on the vet's record?

I tried to find more info at the BVA site and the main Education icon at VA but have not found anything yet that really answers this question-a good one.

Thanks Berta, I'll try to follow-up on this subject; just so busy with my teenager !! ~Wings

PS Good to see you feeling better?