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

[Cavman]

I have chapter 35 benefits and have a daughter in high school. Her dream is a far fetched one...she says she is going to Harvard. What are the limitations or rules as to what school a dependent of a vet with chapter 35 can attend and how much will they pay?

Cavman

[Philip Rogers]

I believe the current rate is $915 a month, for fulltime attendance. The school just needs to be approved by the VA and I'm sure Harvard would qualify. The $915 is a stipend to be spent as the student wants. So if your daughter could get a full scholarship, to Harvard, she'd have $915 for other expenses.

pr

I have chapter 35 benefits and have a daughter in high school. Her dream is a far fetched one...she says she is going to Harvard. What are the limitations or rules as to what school a dependent of a vet with chapter 35 can attend and how much will they pay?

Cavman

[hawkfire27]

Hi Everyone, If you want a copy of the court papers please contact me at the

link below

Email contact

[hawkfire27]

Just a little update.

I have written my NOD and included a copy of the Cypert vs. Peake case. I am now waiting to see what happens.

My case is almost identical to Mrs. Cypert, so I am thinking a have an excellent chance. She was awarded full chapter 35 benefits from the date of marriage using the arguement that she couldn't be eligiblle for benefits unless she was an eligible person. Which occured when she got married and not before. This case concluded on December 23, 2008 so it's not very old. My suggestion is if their are others out there contemplating action in this type of situation, you get it done quickly because the VA will be looking to get the law changed.

So anyway, with their being legal precedence that the award can be granted for new spouses of 100% disabled veteran if they married more than ten years after the 100% award, it will be hard for the VA to continue to interpret eligibility in any way other than was was defined by the US court of appeals.

The next question I have, is: Is it legal for the VA to go against a court decision knowingly???? Wish I could afford a lawyer!!!! :-)

[deltaj]

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.

I thought the veteran's widow can elect chapter 35 eligibility from 10 years of the date of notification of V.A.'s determination of service connected death but I'm not sure. [see 38 USC 3512 ( b ) (1) (A) and 38 USC 3501 (D) (ii).] Berta, I'm thinking that you didn't become an eligible person until the Secretary of Veterans Affairs made a determination that your husband died from a service-connected disability.

Edited October 14, 2009 by deltaj

[Berta]

"Berta, I'm thinking that you didn't become an eligible person until the Secretary of Veterans Affairs made a determination that your husband died from a service-connected disability."

Delta-both I and my daughter got Chapter 35 awards in a 1997 decision.I had ten years from the veterans death (which was 15 years ago today-today is not a good day for me-even the weather is exactly how it was)-I challenged the EED with the crystal ball scenario you mentioned-how could I use what I didnt know I was eligible for? but that didn't work.

That DEA award was based on the veteran's 100% P & T award for PTSD.

I waited until 2003 to continue my degree-dont know why I waited that long-DUH!

VA paid DEA benefits up to 2004- ten years after his death-

In my daughter's case they added her 7 years of military service to her entitlement date.

I re-opened my DIC claim in Feb 2003.The VA awarded it in April 2009-death due to AO DMII contributing.

The award letter made no statement whatsoever on SMC, DEA, Funeral expenses (app in file since 1995),accrued benefits under Nehmer and the 5 figure FTCA offset that VA owes me for the FTCA case (a distinctly separate issue now from the direct SC death.(I received 1151 DIC which is now SC DIC)

Knowing they had manipulated the award by skillfully not mentioning any benefits that were now due me, I responded they had made CUE in the award letter and they are ostensibly fixing it and working on the funeral expense refund and the accrued benefits.

I was livid that they didnt advise me or my daughter of our continued Chapter 35 eligibility.

I bypassed the RO on almost all above benefits- and wrote directly to DEA VA in Buffalo with copy of my new award letter.

In less then 4 weeks DEA (VA EDu) sent me a new certificate of eligibility-and said I could pick one of 3 dates for the eligibility to start-

this info might help other survivors out there-

I could pick Date of death of the veteran (but the ten years ran out on that), or 2003 date when I started college, or the date of the 2009 award letter itself) I picked the 2003 date but am still thinking about that-havent mailed this form back yet-

I also got a check in the mail (in less then 4 weeks) for some of the tuition I paid from 2003 to my graduation and they told me what they needed from AMU in order to refund the rest of the DEA payments from 2003 to 2007.

The VA didnt even mention CHAMPVA (which I do have now) but that wasn't the point of my erroneous award letter.

I sent copy of it to H VAC Chairman C0ngressman Bob Filner as well as James Terry BVA (they had both written to me first re my claim) to show them how survivors are not even being made aware of what benefits they can get.

If I had not been a veteran's advocate I would not know of additional benefits that VA failed to mention at all in the award letter.

And they never mentioned the Nehmer decision in the award.

They hope widows or widowers of AO vets won't google Nehmer and then possibly find out their EED could be all wrong.

If a widow's AO claim was denied in the past and unappealed, and then the widow re-opens years later and is successful in award for herbicide death, the widow's EED is-in Most cases- the date of the veteran's death due to the Nehmer Class Action Court Order and Stipulation.