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?

[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.

[tssnave]

BroncoVet -

Thanks for the FAQ link, I didn't have that one (we both posted the same link to the VA pamphlet). I don't think the new 20 year rule is going to affect Berta since her veteran husband was not on active duty when he died and the conjunction they use in your quote is "and" not "or" (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.)

Phillip -

For those individuals, like Berta's veteran daughter or my veteran spouse, page 8 of the pamphlet states that you have a combined max of 48 months no matter which program(s) you use. I included this because I thought Berta's daughter might be in the same situation as my spouse in that she (Berta's daughter) has her own GI Bill entitlement under whatever program was current when she was in service and may now have entitlement as a surviving child (if the VA allowed her to be considered such).

"You may be entitled to receive up to 45 months of DEA benefits. You may receive a maximum of 48 months of benefits combined if you’re eligible under more than one VA education program."

I was curious to look up the exception in your quote to see if the CFR you quoted was consistent with the VA pamphlet, and it is. You wrote:

( 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©.

If you look up the exception specified in §21.3044 it explains the 48 month max I was quoting:

§ 21.3044 Entitlement.

Text

(a) Limitations on entitlement. Each eligible person in entitled to educational assistance not in excess of 45 months, or the equivalent thereof in part-time training. The Department of Veterans Affairs will not authorize an extension of entitlement except as provided in paragraph © of this section. The period of entitlement when added to education or training received under any or all of the laws cited in § 21.4020 will not exceed 48 months of full-time educational assistance. The period of entitlement will not be reduced by any period during which employment adjustment allowance was paid after the eligible person completes a period of rehabilitation and reaches a point of employability.

Philip - thanks for the citation. It gave me a chance to actually use my Lexus Nexus CD!

As for your question about the remarried spouse, and this is purely speculation, I would think the 48 month cap would kick in since it is clear that no matter which programs you combine they aren't going to go beyond the 48 month cap. So your hypothetical remarried spouse could have used 45 months the first time around as Mrs. Smith but when she applies as Mrs. Jones then she'd only have 3 months left. This would be the only fair way to apply the 48 month max rule since, in the case of a spouse who had education entitlement from their own service could only get a max of 48 months between their own service entitlement combined with their spouse of a veteran entitlement. A remarried spouse shouldn't be able to get any more months of education entitlement from any source than a veteran who was also the spouse of a veteran.

That would be my take on it, not that the remarried spouse would get two full turns at education benefits just because she had two different husbands. If they won't let veterans who are spouses get any more than 48 months then there is clearly the intent that receipients of educational funds no matter how they are eligible be capped at 48 months.

If you find out otherwise, do let us know.

Thanks,

TS Snave

[Philip Rogers]

tssnave, no problem correcting me. I was just looking at Chap 35 bennies, w/o any other plan. As to the other issue, I'm curious because my ex just completed her Chap 35 bennies from her current spouse and since I now have a successful CUE, for an EED and she completed 3 yrs, back in the early '90's, which the VA didn't pay for, I think she's eligible for Chap 35 bennies for that first period. I'm thinking the CUE makes the current issue of Chap 35 use moot. I'm thinking she could get a check for about $10k for that earlier period that is now covered by the CUE. jmo

pr

[tssnave]

Phillip,

Well, if this don't beat all!! I commend you, fellow veteran, for looking out for the best interests of your ex wife. That is a rare character trait indeed!

If I understand the situation correctly, your ex, while married to you, took some classes that the VA did not pay for during a time that is now retro-actively covered because you prevailed in a CUE which awarded you 100% P&T back to a time that includes the not-reimbursed classes she took while married to you.

Then, she remarries and has chap 35 entitlement, which she uses, while married to her current husband.

So the question is can she get reimbursed for the classes she took while married to you during a timeframe that is now acknowledged by the VA as being a time when she would have been eligible for chap 35 benefits during her marriage to you.

I would think the answer is still the same - the 45-48 month max is going to count no matter how you are eligible for the benefit. Doesn't matter if you were a vet yourself and have both your own and your spouse's education benefits, there's a cap. That's the logic I was using in Berta's situation as well as in Berta's daughter's situation and the same logic I would use in yours with a wife who marries multiple 100% P&T vets. The cap is so one person, no matter how they are eligible for education benefits, can only get a certain number of months of payment. I can't see them letting a wife with multiple husbands have a greater benefit than a veteran married to a veteran who is capped at 48 months.

If she didn't use all the months up to the cap under her entitlement based on her current husband then I think they should reimburse her - up to the 45/48 month max - for the classes she took while married to you that are now covered by your new EED.

Of course, this makes me wonder - to look at this another way and draw some parallels, maybe you or Berta or someone else can answer this question - how does the VA treat multiple occurences of the same benefit in the case of a woman who marries multiple vets? Is there any example where a veteran's ex spouse or surviving spouse who gets remarried to another veteran is able to "double dip" and draw double benefits of any kind either sequentially or concurrently? If so, then you might have a precident to play off of. Otherwise, I think the limit of 45-48 months for education benefits from any program will kick in.

I would be very interested (though not as interested as your ex wife!!) what the ruling would be on this. Please keep us posted on the outcome.

Thanks,

TS

Edited July 15, 2009 by tssnave

[Philip Rogers]

TS, you got it! That's exactly it. My thoughts are the CUE makes any subsequent issues moot, as tho they never happened. Therefore she should be eligible. To look at it another way: She was my dependent, then we divorced. She remarried and became his dependent and he's being paid for her. She wasn't prevented from receiving the same benefit twice. Now, if she were a widow and remarried she'd lose her DIC, until such time as she divorced her husband or he died, at which time she could collect, DIC, against his death or her previous spouse. We'll see what happens.

That being said, if two 100% vets marry can either or both collect for the other as a dependent? And what if they have children? This is fun!

pr