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I Need Some Help On Locating A Precedent(sp) Wings, Anyone!

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Philip Rogers


  • HadIt.com Elder

It took me 10 yrs to win 100% P&T, and on the way I won increases at each step, but in the end, the BVA awarded me 100%, P&T, retro to 1989, w/Chap 35 for my wife, at the time but they failed to award my daughter, Chap 35, then, and she was 19yo. As my daughter and I were/are estranged I didn't pursue the error. The VA is saying that the exam that awarded me P&T was done in 1997 and therefore my daughter was over the age. I'm saying that since I was awarded P&T, in 1999, retro to 1989, all the additional awards after the initial exam and award, which, btw, were for PTSD, are moot, as the original claim was under constant appeal and was eventually won, thereby voiding all subsequent claims/awards. I was awarded TDIU, w/P&T, in 1997 but the 100%, w/P&T, that was awarded in 1999 retro to 1989 voided that award.

I need a precedent that establishes that when the original claim is won, all subsequently awards/claims are moot or voided. I'm sure there's one out there, it's just that I'm not a good researcher.

We have a DRO hearing in about 2 wks, on her appeal. I'm thinking I should also file a CUE on the original BVA award, based on the failure to award my daughter, in the original decision. It's definitely a CUE. Thanks, all!


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Philip- I think Wings is on a brief break from hadit-

not sure but I will get right on this for you.

Indeed -I think this is a CUE too-

"The VA is saying that the exam that awarded me P&T was done in 1997 and therefore my daughter was over the age"

but what would the Exam date have to do with it if the EED was prior to the exam date?

I think your daughters EED should have been 1989.

The decision and EED they gave you for 100% P & T trumps

any other decisions.

I discussed something similiar with Rick Spaturo NVLSP-

I wanted to see if he would agree that when I win my AO death claim, that trumps the Sec 1151 award.

He agreed right away.

The 1151 was awarded in 1997.

Dont know where to start looking- but I will do what I can.

For example VA awarded both me and my daughter Chap 35 in 1997 but the EED was 1991.

She was still in high school in 1991 but still she got her Certificate of Eligibility which would have gone back to 1991 yet she was in high school-not college-

In my case, same award.

VA sent me a letter asking me if I had college tuition bills paid back to the EED.I had paid them while I was spouse of a different disabled vet. So no retro for me.

But as I understand this post- you are Correct that this certainly appears to be a CUE.

If BVA makes a CUE , then a Motion has to be filed with the BVA.

I have a template somewhere or maybe my old BVA Motion if you need it (for a CUE)

RO and BVA denied it then a few years ago the Regional COunsel awarded it.

I should have kept pursuing it but it worked out anyhow.

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I don't think this is exactly what your looking for

but it may help.

I'll keep looking for something closer.







Sec. 5113. Effective dates of educational benefits

(a) Except as provided in subsections (b) and ©, effective dates

relating to awards under chapters 30, 31, 32, 34, and 35 of this title

or chapter 106 of title 10 shall, to the extent feasible, correspond to

effective dates relating to awards of disability compensation.

(b)(1) When determining the effective date of an award under chapter

35 of this title for an individual described in paragraph (2) based on

an original claim, the Secretary may consider the individual's

application as having been filed on the eligibility date of the

individual if that eligibility date is more than one year before the

date of the initial rating decision.

(2) An individual referred to in paragraph (1) is an eligible person


(A) submits to the Secretary an original application for

educational assistance under chapter 35 of this title within one

year of the date that the Secretary makes the rating decision;

(B) 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 by

the Secretary; and

© would have been entitled to such educational assistance for

such course pursuit if the individual had submitted such an

application on the individual's eligibility date.

(3) In this subsection:

(A) The term ``eligibility date'' means the date on which an

individual becomes an eligible person.

(B) The term ``eligible person'' has the meaning given that term

under subparagraphs (A), (B), (D), and (E) of section 3501(a)(1) of

this title.

© The term ``initial rating decision'' means with respect to

an eligible person a decision made by the Secretary that establishes

(i) service connection for the death of the person from whom such

eligibility is derived or (ii) the existence of the service-

connected total disability permanent in nature (or, in the case of a

person made eligible under section 3501(a)(1)(E), the total

disability permanent in nature incurred or aggravated in the line of

duty in the active military, naval, or air service) of the person

from whom such eligibility is derived, as the case may be.

© The effective date of an adjustment of benefits under any

chapter referred to in subsection

(a) of this section, if made on the

basis of a certification made by the veteran or person and accepted by

the Secretary under section 3680(g) of this title, shall be the date of

the change.

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38 C.F.R. § 21.4131 (b) (2003).

Except in special circumstances, none of which is applicable

here, before any program of education can be provided, a

child must have reached their 18th birthday or completed

their secondary schooling, whichever is earlier. 38 C.F.R.

§ 21.3040(a) (2003).

The beginning date of a period of

eligibility for a child, as referred to in 38 C.F.R.

§ 21.4131(d)(1), is governed by 38 C.F.R. § 21.3041(a)


Generally, the basic beginning date for a child's

period of eligibility is their 18th birthday or successful

completion of secondary schooling, whichever occurs first.

An exception to this date is possible if the effective date

of the permanent and total disability rating occurs after the

child has reached 18 but before she has reached 26.

In that

case, the beginning date of eligibility will be the effective

date of the rating or the date of notification to the veteran

from whom the child derives eligibility, whichever is more

advantageous to the eligible child. 38 C.F.R. § 21.3041


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I'm still looking.




Payments; Educational Assistance Allowance

§21.4131 Commencing dates.

(e) Adjusted effective date for award of educational assistance under 38 U.S.C. chapter 35 based on an original claim. When determining the commencing date under §21.4131(d)(1), the Secretary will consider an eligible person’s application for Survivors’ and Dependents’ Educational Assistance under 38 U.S.C. chapter 35 as having been filed on his or her eligibility date if:

(1) The eligibility date is more than 1 year before the date of the initial rating decision that establishes either:

(i) The veteran’s death is service-connected, or

(ii) The veteran has a P&T disability;

(2) The eligible person files his or her original application for benefits under 38 U.S.C. chapter 35 with VA within 1 year of the initial rating decision;

(3) The eligible person claims educational assistance for pursuit of an approved program of education for a period that is more than 1 year before the date VA receives his or her original claim;

(4) VA either:

(i) Received the original application on or after November 1, 2000; or

(ii) Received the original application and, as of November 1, 2000, either:

(A) Had not acted on it; or

(B) Had denied it in whole or in part, but the claimant remained entitled to pursue available administrative and judicial remedies as to the denial; and

(5) The eligible person would have been eligible to educational assistance under 38 U.S.C. chapter 35 if he or she had filed a claim on his or her eligibility date. (Authority: 38 U.S.C. 5113; Pub. L. 106-419, 114 Stat. 1832)

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Good info-

I found something else too-

Philip-do you have any copy of the VBM (NVLSP) from 2001 or sooner edition?

They make the point that (on page 597 208 Edition)- that in 2000 COngess amended 38 USCS 5113 to provide retro Chapter 35 payments for the period beginning with the actual EED of the 100% P & T award as long as they are othrwise entitled to this benefit.

If you dont have the VBM-I will try to send this to you via email-I am not allowed to post or attach whole pages here per the copyright laws etc-per NVLSP-but NVLSP said I can refer to stuff in the VBM here at hadit.

These pages in the 2008 edition might help you a lot-

they also refer to the statute that provides when a reg is amended-and the newer reg is more favorable to the claimant than the older reg- then the newer reg becomes a liberalizing change for the claimant and has to be considered.

It might not be until tomorrow if you need this info-I always have an endless printing queue-

but this might be exactly what you need.

Also whenever VA Education sees a dependent is 26 they get a knot in their underwear and often deny without reading the claim and the circumstances.

Most dependent children can lose Chapter 35 when they turn 26.

Something all should keep in mind.

Best that the kids take advantage of this benefit as soon as they can to beat that 26 year old cut off date-which is extended only by military service periods in most cases.

Edited by Berta
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See # 3 below.





TITLE: To amend title 38, United States Code, to increase the rates of educational assistance under the Montgomery GI Bill, to improve procedures for the adjustment of rates of pay for nurses employed by the Department of Veterans Affairs, and to make other improvements in veterans educational assistance, health care, and benefits programs, and for other purposes.

S. 1402, as amended would:


Subtitle A . Montgomery GI Bill Educational Assistance

1. Increase, effective November 1, the All-Volunteer Force Educational Assistance Program basic benefit (commonly referred to as the Montgomery GI Bill or MGIB) to $650 per month for a three-year period of service and $528 per month for a two-year period of service.

2. Repeal the requirement that a servicemember obtain a high school diploma or equivalency certificate prior to the completion of the initial period of active duty as a condition of eligibility for MGIB benefits.

3. Repeal the requirement that Montgomery GI Bill entitlement is predicated on completing an initial obligated period of service so that eligibility can be based on any subsequent period of service.

4. Permit certain Post-Vietnam Era Veterans. Educational Assistance program (VEAP) participants to enroll in the Montgomery GI Bill program.

5. Permit servicemembers to . buy up. their MGIB basic benefit by making an after-tax contribution of up to $600 which would provide up to $5,400 in additional benefits over 36 months ofentitlement, or an additional $150 per month.

Subtitle B . Survivors. and Dependents. Educational Assistance

1. Increase, effective November 1, the basic educational allowance for survivors and dependents to $588 per month, with annual cost-of-living adjustments.

2. Allow children eligible for survivors. and dependents. educational assistance to choose the beginning date of their eligibility period between the date on which a rating decision is signed or the date of death and the date on which the Secretary first finds the death service connected.

3. Permit the award of survivors and dependents educational assistance payments to be retroactive to the date of the entitling event, that is, the service-connected death or award of a total and permanent disability rating.

4. Allow use of the survivors. and dependents. educational assistance for preparatory courses for college and graduate school entrance examination requirements.


Hope this helps.


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