ptsd Dea/(chap 35) Mumbo Jumbo

[Berta]

Educational assistance shall not exceed 10 years after one of

the following last occurs: (A) The date on which the

Secretary first finds the spouse from whom eligibility is

derived has a service-connected total disability permanent in

nature; ( The date of death of the spouse from whom

eligibility is derived who dies while a total disability

evaluated as permanent in nature was in existence; © The

date on which the Secretary determines that the spouse from

whom eligibility is derived died of a service-connected

disability. 38 U.S.C. § 3512(B)(1) (West 2002); 38 C.F.R. §

21.3021(a) (2008).

OK- I received Chapter 35 when Rod was declared 100% SC P & T due to PTSD a decade ago by the VA.

My Chapter 35 ten year entitlement ran out so I paid $6,000 in tuition to finish my degree at AMU.

You all know I got a direct service death award letter.Which I complained about to the VARO and they cannot give me a status yet.

One of the numerous errors in the letter was any statement at all as to CHapter 35.

The statement also has to cover my daughter -who has her Chapter 35 Certificate and also has time left to use it as they added in her 7 years of mil service to her entitlement date-(3 weeks after they got NOD on the wrong date)

so this affects both of us.

Do you all interpret the above to mean-

if the 'one of the following last' occurred-meaning my AO death award letter-May 13,2009 was last-

doesnt the VA have to send me a new Chapter 35 award-and my daughter- and

is that what I need to recover the 6,000 bucks?

[carlie]

Berta,

I only read thru it twice but I think this one applies to you and your

daughter's situation.

carlie

The

date on which the Secretary determines that the spouse from whom eligibility is derived

died of a service-connected disability. 38 U.S.C. § 3512( B) (1) (West 2002); 38 C.F.R. §

21.3021(a) (2008).

[LarryJ]

Yes. They owe you another Chap 35 starting on 13 May 2009. The clock started ticking on 13 May 2009 for 10 more years.

Your problem being finding someone that actually works for the VA that can understand their own convoluted reasoning (as if they HAD any reasoning ability).

[Berta]

Thanks Carlie and Larry-

I am at the point that I even doubt what the regs actually say!

I have the offset FTCA regs too- another thing VA avoided in my decision but I am contacting VA District Counsel today and bypassing VARO on that.

The CUE that BVA denied on this years ago (which like a dope I didnt appeal to CAVC)

was awarded by the same VA district counsel when I re-opened my claim.

So I know at Buffalo VA there is at least one person who can read.

I am disheartened by this award letter-

for 6 years I supported a herbicide death claim.

The BVA decision awarded direct SC death due to AO.

The VARO decision however ignored this main facet of the claim.And didnt even Nehmer which adds another monetary facet to the proper award.

And again they made no SMC statement nor any ratings whatsoever for DMII, CAD due to DMII and CVA due to DMII.

This is what I have 2 CUES pending on-under 1151 filed in 2004 but this award letter should have rendered those CUES moot with proper ratings and SMC award as accrued.

The more I read this award letter the angrier I get.Someone took about 5 minutes to prepare it and missed everything or they deliberately decided to send out an award letter that doesn't even cover basic VA regs.

My PC man is coming back from India on Friday and will fix me up-

that too has been miserable to deal with -I started to have major PC problems right after the BVA award letter came-that can be very stressful.

Edited June 22, 2009 by Berta (see edit history)

[Philip Rogers]

Berta, I'm not sure on this one and you didn't mention if you used any of those previous Chap 35 benefits. That may or may not make a difference. Then again, if it's based on a CUE, the issue should be moot. I'd pursue the claim anyway, and not worry about whether others think it's frivolous. rofl jmo

Here's a couple of questions: If a vet remarries is the new spouse eligible for Chap 35 benefits and if so when?? Suppose the new spouse was previously married, to another vet, and used Chap 35 bennies from him/her, would they be entitled to continue for an advanced degree???

pr

Thanks Carlie and Larry-

I am at the point that I even doubt what the regs say!

I have the offset regs too- another thing VA avoided in my decision but I am contacting V Counsel today and bypassing VARO on that.

The CUE BVA denied on this years ago (which like a dope I didnt appeal to CAVC)

was awarded

Edited June 22, 2009 by Philip Rogers (see edit history)

[carlie]

Berta,

At this point doesn't VA also need to pay you back the off-set amounts ?

I sure think they do.

carlie

[Berta]

Great questions-

I will try to find answers for you Philip-

Yes I used the Chap 35 award I got in 1997 but it ran out -

the VA did pay quite a bit but I had to pay $6000 more to finish my AMU degree.

I think I am eligible for refund of the 6,000.

And my daughter only needs 2 credits for BS but with her fed job it has been difficult for her to finish it-time wise-

she also has GI Bill but that too has a time limit.

She was planning on using Chapter 35 for her Masters at AMU.Her Chap 35 eligibility under Rods 100 % P & T Award was extended until 2012.

But as we seem to agree here on the regs I posted -the VA has to make a new Chapter 35 award to her too.

I am emailing VA Edu today to see what is what-

I filed a NOD on their decision to cut off my Chapter 35 although they were right at the time-

and I asked them to maintain the NOD as I expected to prevail on direct SC death award and a new eligibility date.

I cant find a single case like this at the BVA.But as Rick Spaturo (NVLSP) agreed with me last time we talked- direct SC trumps everything else.

[carlie]

Berta,

Don't they owe you back the off-set money too ?

carlie

[LarryJ]

Berta, what impresses me the most, out of all this, is that you have a guy coming all the way from India to fix your PC!

[Philip Rogers]

Larry, you'd think with all her money (lol), she'd purchase a new notebook, which would be cheaper than flying someone round trip from India. I paid under $400 for my Acer Aspire and less than $300 for my Acer Aspire One, mini. Much cheaper than the $2k+ I wasted, about 2 yrs ago, on my HP notebook. Nowadays you can purchase a new one cheaper than repairing.

pr

Edited June 22, 2009 by Philip Rogers (see edit history)

[Berta]

This was funny stuff guys-

Actually my PC man is in India on PC business.He got me back on line the day before he flew out but this PC is shot-4 years is about my limit-on PCs

Carlie Yes they sure do- they owe me the offset and I have call in for the Regional COunsel up here to square that away.

I waited for 6 years for a finally proper award on my husband's death- diabetes mellitus causing fatal heart disease with multiple strokes contributing- due to Agent Orange.

What I got was a direct SC death that left out the herbicide stuff and any mention of ancillary benefits.

The BVA however in prior decisions to me stated the offset would have to be refunded and that ancillary benefits would have to be awarded to me upon direct SC death award.

That is also spelled out clearly in VA 101 case law.

The attorney I spoke to at regional counsel this AM asked me why I called them and didnt bring this up with the VARO as to the offset but I told him they employ illiterates at my VARO.Lawyers however know how to read.

[deltaj]

Educational assistance shall not exceed 10 years after one of

the following last occurs: (A) The date on which the

Secretary first finds the spouse from whom eligibility is

derived has a service-connected total disability permanent in

nature; ( The date of death of the spouse from whom

eligibility is derived who dies while a total disability

evaluated as permanent in nature was in existence; © The

date on which the Secretary determines that the spouse from

whom eligibility is derived died of a service-connected

disability. 38 U.S.C. § 3512(:D(1) (West 2002); 38 C.F.R. §

21.3021(a) (2008).

OK- I received Chapter 35 when Rod was declared 100% SC P & T due to PTSD a decade ago by the VA.

My Chapter 35 ten year entitlement ran out so I paid $6,000 in tuition to finish my degree at AMU.

You all know I got a direct service death award letter.Which I complained about to the VARO and they cannot give me a status yet.

One of the numerous errors in the letter was any statement at all as to CHapter 35.

The statement also has to cover my daughter -who has her Chapter 35 Certificate and also has time left to use it as they added in her 7 years of mil service to her entitlement date-(3 weeks after they got NOD on the wrong date)

so this affects both of us.

Do you all interpret the above to mean-

if the 'one of the following last' occurred-meaning my AO death award letter-May 13,2009 was last-

doesnt the VA have to send me a new Chapter 35 award-and my daughter- and

is that what I need to recover the 6,000 bucks?

There is a V.A. General Counsel Precedent Opinion that includes the phrase delimiting dates in the title and concerns the new delimiting date being from the new notification. Also I recently saw another newer post here on hadit concerning a law enacted in 2000 that allowed dependents to go on educational benefits from the date of P&T status. Someone posted the pertinent section of the 2000 law in large print on hadit.

[tssnave]

Berta,

My recollection and the way I understood it, you can only have up to 48 months max VA education benefits no matter how you get them (from being in service or Chap 35). When I got my 100% P&T we were dismayed to find out my spouse could not use it to get a Masters degree. We had both been in service and used all our GI Bill and there is a 48 month cap on the combined number of months you can use for any gov't education program be it the GI Bill, the Montgomery Bill, etc, or VA Chap 35 education benefits (see page 8). Given the cap, I would assume that you wouldn't get a "second round" of Chap 35 benefits or benefits over the max number of months allowed.

Here is the link to the Chap 35 education benefits pamphlet:

http://www.gibill.va.gov/pamphlets/ch35/CH35_Pamphlet.pdf

It's been over a year since I looked into this so if you read it another way, please let me know.

Thanks,

TS Snave

Edited July 14, 2009 by tssnave (see edit history)

[Berta]

Yes TS that is correct-

but I paid for most of my degree myself.

I am assuming that they must make a new Chapter 35 award because the SC death award requires it and then they will deduct what I used up already and give me more eligibility time ???

Or at least I do expect to get refund on what I had to pay myself to finish degree-

I need to check some BVA decision on this-

It is highly likely that a survivor would have CHap 35 as spouse and then as a survivor due to direct SC death.

I think I stated this wrong before- my CHp 35 ran out but what I actually meant was I let years of eligibility go by before I decided to use it.It was the limiting date on survivors CHap 35 that I allowed to run out.

Survovors Chap 35 is different from spouses CHap 35.

[tssnave]

Berta,

Yes, that's how I would interpret it - if the issue is one of time to use chap 35 and not months of benefits used - I would agree that the clock should start ticking again on your new chap 35 benefits and that any months you used on a previous chap 35 award would be deducted from the max allowed leaving you a remainder of months that you could now use within the time limits for this second award of chap 35 benefits.

Also, if the 6k you spent for education was after your first award expired but within the retro timeframe for this award and you did not reach the 45-48 month limit the first time around since it was time you let run out and not money, then it stands to reason that you are entitled to retro reimbursement for either the 6k or for the amt of months/money up to the max months/money allowed.

I agree with your reasoning and logic.

In a perfect world the VA would do this right the first time you submitted it but the odds aren't in favor of that.

Let us know what you find out with BVA decisions and how this plays out.

Thanks,

TS

[broncovet]

Berta

Try reading this instead:

http://www.gibill.va.gov/pamphlets/CH35/CH35_Pamphlet.pdf

A pertinet part, I beleive is (quoting the VA pamphlet)

If you’re an eligible surviving spouse and the veteran died of a service-connected disability, you may choose the beginning date for your 10-year period of eligibility. That date must be between the date of death and the date we determine that the death was due to service-connected disability.

Veteran Had Permanent and Total Service-Connected Disability at Time of Death

If you’re an eligible surviving spouse and the veteran had a permanent and total service-connected disability at time of death, the beginning date of your 10-year period is the date of death.

Veteran Died on Active Duty

If you’re an eligible surviving spouse and your spouse died on active duty, your eligibility period is 20 years from the date of death.*

*Note: This is a change in law that became effective December 10, 2004. If you were previously eligible based on your spouse’s death on active duty, and your 10-year eligibility period expired before December 10, 2004, you now have a new eligibility period of 20 years from the date of your spouse’s death. However, in those cases we can pay only for training that began on or after December 10, 2004.

Example: A veteran died on active duty on July 1, 1985. Until the change in the law, the surviving spouse’s 10-year eligibility period would have ended on July 1, 1995. Now, the surviving spouse has a new eligibility period ending on July 1, 2005. However, VA can pay only for training that began on or after December 10, 2004.

I interpret the "Note" to mean you have 20 years, not ten.

However, when my son got Ch. 35, I seem to recall that he could only get "retro" for 2 years, but I am not sure if that is just his situation or everyones. When my son got his Ch. 35 letter of eligibility, there is an election date he has to pick. That is, he gets a maximum of 48 months (I think this number is correct) of benefits, but he gets to pick what date he wants to start on, as long as it is AFTER my effective date of P and T.

I went with him to his school Veterans benefit counselor, and they seemed very knowledgeable. The VA has lots of rules they did not used to have as far as payments on Ch. 35. For example, classes that you take which do not work toward your degree wont count towards full time. Also he gets benefits only while he is actively attending classes, not during the summer or breaks, except in special circumstances.

Hope this helps.

[broncovet]

Berta

Also try the Educational Ch. 35 FAQ's located here:

https://www.gibill2.va.gov/vba/vba.cfg/php....0&p_cats=10

[Philip Rogers]

I believe it's 45 months.

pr

§ 21.3020 Educational assistance.

The program of educational assistance under 38 U.S.C. Chapter 35 captioned Survivors' and Dependents' Educational Assistance, may be referred to as Dependents' Educational Assistance.

(Authority: Sec. 309, 90 Stat. 2383)

(a) General. A program of education or special restorative training may be authorized for an eligible person who meets the definition contained in §21.3021.

(b) 45 months limitation. Educational assistance may not exceed a period of 45 months, or the equivalent in part-time training, unless it is determined that a longer period is required for special restorative training under the circumstances outlined in §21.3300© or except as specified in §21.3044©.

(Authority: 38 U.S.C. 3511(a), 3533, 3541(b))

© Courses in foreign countries. A course to be pursued at a school not located in a State or in the Philippines may not be approved except under the circumstances outlined in §21.4260.

[30 FR 15631, Dec. 18, 1965, as amended at 31 FR 6773, May 6, 1966; 34 FR 841, Jan. 18, 1969; 38 FR 14931, June 7, 1973; 43 FR 35289, Aug. 9, 1978]

Berta,

My recollection and the way I understood it, you can only have up to 48 months max VA education benefits no matter how you get them (from being in service or Chap 35). When I got my 100% P&T we were dismayed to find out my spouse could not use it to get a Masters degree. We had both been in service and used all our GI Bill and there is a 48 month cap on the combined number of months you can use for any gov't education program be it the GI Bill, the Montgomery Bill, etc, or VA Chap 35 education benefits (see page 8). Given the cap, I would assume that you wouldn't get a "second round" of Chap 35 benefits or benefits over the max number of months allowed.

Here is the link to the Chap 35 education benefits pamphlet:

http://www.gibill.va.gov/pamphlets/ch35/CH35_Pamphlet.pdf

It's been over a year since I looked into this so if you read it another way, please let me know.

Thanks,

TS Snave

[Philip Rogers]

I've got an interesting question. Can a spouse who received Chap 35 bennies from a previous spouse receive new bennies when he/she remarries another P&T vet? I would think they could.

pr

[Berta]

"Also, if the 6k you spent for education was after your first award expired but within the retro timeframe for this award and you did not reach the 45-48 month limit the first time around since it was time you let run out and not money, then it stands to reason that you are entitled to retro reimbursement for either the 6k or for the amt of months/money up to the max months/money allowed"

This is how I see it- I filed a NOD when my 10 year limit was up under the 100% P & T Chap 35 award-stating I expected to succeed in direct SC death and would get a new Chap 35 award.

IRIS said today that my erroneous award letter (I told them it was the most deficient one I had ever seen in over 10 years)

is still with the RO appeals team.

Once that is properly done I can ask VA Edu for any potential retro they owe me.

I was talking to a lawyer at NVLSP one day who agreed with me that a direct SC death award in my case would render all past decisions moot anyhow.

But will search BVA for some guidance-

I keep forgetting to email VA Education Dept directly-

to ask.

[broncovet]

Berta..

I hope you dont get caught in the "new law" that I mentioned in my previous post,"

This is a change in law that became effective December 10, 2004. If you were previously eligible based on your spouse’s death on active duty, and your 10-year eligibility period expired before December 10, 2004, you now have a new eligibility period of 20 years from the date of your spouse’s death. However, in those cases we can pay only for training that began on or after December 10, 2004.

The other issue is I am trying to find out if there is a "retro cap" of two years, or that was just in my particular case because my effective date of P and T was two years ago. I havent been able to find out for sure of this yet, but I know my son was not able to get Ch. 35 Retro beyond two years.