Help Regarding Back Dating and Chapter 35 dependent benefits?

[aztravis]

Hi everyone, found this place while googling trying to find some answers, and was hoping I could get some help with my question.

So I guess to kick things off, I am the child of a 100% disabled veteran (my father). He was classified as 100% disabled retroactive to 2012. Starting in 2013, I started my graduate degree program from 2013-2015, graduating in June of that year (though my last class was during Feb 2015). I myself am a complete newbie when it comes to even trying to navigate this complexity that is VA benefits, so I was hoping I could get some solid advice from those more knowledgable about it.

Now up to this point in my life in 2016, no one in my family had heard about these educational benefits or of Chapter 35 really; my father assumed there was nothing out there for my brother or I since to his understanding, most of these newer programs were aimed at the newer generation of disabled vets as he retired back before 9/11 and all that. My younger brother was actually the one who alerted me to this program as he did research into the topic since he was getting ready to start college and I assume he had help from his college's financial aid staff in discovering he was eligible for these benefits. As there seemed to be no given limit for these benefits on all the pamphlets and material I was reading online, I applied for a back date of Chapter 35 benefits to when I started my graduate program in 2013. I got my enrollment certification for all of the months submitted and was waiting expecting a decently sized back dated deposit since it was a period of 2 years I was eligible for benefits, which I could really use to eat at some of that student debt I have and for other savings.

Disappointingly, I received a very meager deposit that basically amounted to ~a quater of my last month. After contacting the VA benefits people (and having them re-send a letter they had sent to an incorrect address), per this letter, they are unable to pay for part of it because "By law, VA can't pay for training you took more than one year before we rceived your claim for your current program". My claim was filed back in Feb 2016 as again, I had no prior knowledge of this program or benefits as no one at my school ever bothered you know, trying to help or do anything really. The VA rep I spoke with on the phone when I contacted them was (unsurprisingly in retrospect recalling all of my father's struggles) unhelpful, and even went as far to "unofficially" discourage appealing as well since according to her, there was no point since it's the law.

So what I want to know is first of all, where exactly does it say there is a limit of one year for back dating for benefits? Again in all of their published material I've read like their pamphlets and such, I do not recall ever seeing a limit of one year for back dating, so I assume it must be buried somewhere amongst legalese. Even then it doesn't make sense to me, as my father received several years worth of back pay for his disability claims since he was constantly mis-classified as to the percent he was disabled, so it strikes me as callous they can deny children dependents based off an arbitrary year? In addition, the VA student rep at my former college also has no knowledge of a year limit to back dating for benefits, he thinks it would be based off the date the veteran in question became 100% disabled. It's frustrating in one respect as that means instead of being proactive and seeking education to better myself, I should not have bothered at all and I would be receiving full benefits if I only started now.

My next question I guess is, what steps should I take assuming this year limit is a hard fact? Do I have any basis to appeal this decision? Has anyone been successful in such an appeal? If there really is a limit of one year to backdating, it again seems pretty ridiculous to me. I really don't have any plans on going back to school as I have my Masters now and it's not like more degrees or something like a PHD would necessarily do anything for me in my current career, I am apparently still eligible for benefits since I have used far less than the 45 months and still have until 2020 before they expire, but again there's just really not much that more schooling would do for me, not to mention any debt I incur taking more graduate classes would far exceed a monthly benefit; the majority of my schooling is done, and the real benefit would be getting it successfully backdated to cover those expenses.

So if anyone at all has some advice on what steps to take, it would greatly be appreciated. Many thanks for any help provided.

Edited July 16, 2016 by aztravis

[Berta]

I am a Chapter 35er.

" In addition, the VA student rep at my former college also has no knowledge of a year limit to back dating for benefits, he thinks it would be based off the date the veteran in question became 100% disabled. "

That is correct. You Entitlement date is based on the earliest effective date they awarded your father 100 P & T.

But there also is an age 26 cut off date for adult children of veterans unless you have military service time which can be added to the EED.

The P & T designation is crucial for Chapter 35 awards.I am unaware of any regulation that supports their letter 

The VA letter... "By law, VA can't pay for training you took more than one year before we rceived your claim for your current program"

Did they give any legal citation for that? Can you scan and attach the letter here? (cover C file #, name, address prior to scanning it)

I have found in the past that VA Education Dept can be an oxymoron.

They made a ridiculous error on my daughter's Chap 35 award but they fixed it fast.

In some situations the VA will grant an earlier effective date for Chap 35. I assume your father is still living... but this info might help others

There is no age cut off for me, as a widow of a 100% P & T vet.

The initial Chap 35 award was a Posthumous award for me and my daughter.

Years after that award was made I succeeded in a direct service death claim.

My Chapter 35 EED became more favorable. By then I had paid about 6 or 8 thousand myself  to finish my degree because my original Chap 35 date had expired.

The VA refunded that amount to me ( after a small hassle which was nothing compared to my other issues with VA)

My point is a  DIC award to a spouse can often alter a past Chapter 35 award favorably by changing the Chapter 35 entitlement date to the date of the veteran's death..

" Do I have any basis to appeal this decision?" Yes . They should have advised you of appeal rights in that letter.

"Has anyone been successful in such an appeal?" Yes but for a different reason.

I wrote a very brief NOD for my daughter and she says I also used the CUE regulations too. I mailed it to her to sign, copy and send to VA EDU. Three weeks later she got the proper entitlement date and the proper Chapter 35 Certificate.

I enclosed with the NOD the exact regulation they broke.The regulation was right on the Chapter 35 application.

If we can see the letter ( without personal identifying info) hopefully we can help more.

There might be a legal rationale for their letter however. This is a detailed Chapter 35 BVA decision.....it gets into numerous reasons why the claimant was denied.

After we can read the letter, I can see if their rational is supported by the legalize in this decision:

 

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp15/Files6/1552624.txt

This statement bothers me:

The VA letter... "By law, VA can't pay for training you took more than one year before we rceived your claim for your current program"

"current program".....I was in a consistent program at AMU.....was the current program,in your case,  at a different school than the initial Chapter 35 award was for?

As I recall my Chap 35 award certificate of eligibility specifically stated

American Military University and that never changed.

That might be the problem if you changed schools.

 

 

 

 

 

 

 

 

 

 

Edited July 16, 2016 by Berta

[Berta]

One other thought:

" My younger brother was actually the one who alerted me to this program as he did research into the topic since he was getting ready to start college and I assume he had help from his college's financial aid staff in discovering he was eligible for these benefits. "

is it possible they mixed up your Chapter 35 situation with his? 

My daughter and I have the same DEA C file number as my husband did.

You mentioned how difficult your father's claim was. I learned that VA EDU, like our ROs, often lacks the ability

to read.

 

 

 

 

[broncovet]

Its an interesting question.  YOu can hire a lawyer, but I am skeptical.  You should ask a qualified VA attorney.  Going after those back bennies is a big deal. 

When the Vet is awarded P and T, along with eligiblity for dependents Ch. 35, as berta pointed out, there is an "effective date" in the letter. 

Of course, the dependent ALSO has to apply for Ch. 35 benefits, and its true that benefits "wont be earlier than the application thereof".  

This said, when the Vet dependent applies for Ch. 35, he gets an "election letter"...to elect whether he wants Ch 35 beneifts to the effective date of the sponsors disability or now.  

My son applied, and sent in that he wanted the effective date to be the date I was disabled.  

Naturally, VA "looses' OR SHREDS, THIS ELECTION FORM.  So, when benefits are delayed, they say its because they did not get the election form.  So, he sent it electronically through the school.  Done hamster wheel, right?  Wrong.

The VA denies electronic confirmation.  So, we go to the school, and the school sends them a copy of the email where they confirmed he wanted back Ch. 35 benefits.  

The bottom line is that VA shreds any information they feel is necessary to deny/delay claims, and he got cheated out of his Chapter 35 back pay.  He told me he was continuing on to school, so he would not go through the hassel of appealing.  He did continue, and it amounted to about 6 months he never collected, because he got future benefits instead.  

Its one of those things where Trump says he will have a white house hotline where Vets can call the white house and fix these problems.  Of course, VA opposes Trump, and says this is unneeded, and Clinton says he wants to privatize VA, so she wants the status quo.  

VA does not care about Vets, it should be called VA EMPLOYEE Benefits plan, because that is who it benefits most, and Vets are low on the priority totem pole, below VA employees.  If you go to work for VA, you will get paid in 2 weeks, no matter what.  If you are a disabled Vet, glitches could cause your benefits to be delayed or denied for years.  That is wrong.  

I have been a hadit member for about 9 years and have read and answered thousands of questions.    This kind of stuff happens over and over, to Veterans, Widows, and dependents.  "Glitches", they call them.  Amazingly, employee pay glitches are solved in 2 weeks, it often takes years to fix Veteran, dependent, glitches.  

Again, you should likely hire an attorney, or at least consider doing so.  

Edited July 16, 2016 by broncovet

[aztravis]

HI everyone, thanks for the comments so far. To clarify on a few more points:

I am currently 28, but the time frame of my schooling was when I was 24-26, so my rational there is I should be fine? Not to mention their other initial letter i had received when I made my election date stated I was good to receive benefits through 2020. I don't think they could mix up my brother and mine, as he is going to an entirely different school and we have different names, though I guess it could always be a slim possibility.

I am really inexperienced when it comes to lawyers...I mean they charge just to consult with them don't they? Being kind of timid about that, I'd rather seek that sort of consultation as a last resort if I can't find any other thing. But no, otherwise in this letter i received they state no sort of law or statute behind their rationalization, I'll get a scan up and redact out some of the personal info so you guys can have a look. I mean it's kind of baffling in that regard, as someone who works in the state government, I'm used to having to justify things and reasoning backed by whatever the applicable law is, so it is odd this letter is so vague.

So if I'm reading this form 4107, I have a year to appeal, so at least this gives me time to gather information. Is it worth at all calling the VA Benefits number and trying to get a different rep who might be able to explain or look into the situation better or would that be a lost cause? It also mentions that a Veteran Service Organization can help with the process, would it be worth consulting with them?

Thanks again everyone, it's a bit of a relief to know that it might not be a lost cause.

Edited July 16, 2016 by aztravis

[Berta]

I re-read the BVA link I posted and the decision might explain more than what the letter said.

I began to wonder why I got a refund

but as soon as the direct SC death award was made regarding my husband's death, I contacted the VA liaison person I had dealt with,  at AMU and their financial  aid office to get an audit of my payment schedule ,after my initial DEA ran out, and I contacted VA educational department formally within one year after their SC death award date....which was a new decision that had nothing to do with the past posthumous decision.

There are Many appeals at the BVA web site regarding Chapter 35.

 

 

Edited July 16, 2016 by Berta

[Song]

Hello Berta , can you help me take a looke my question: 

i am a 100% disability Veterant and effective date is 8/2015 , and my son who study in university of PA since 01/2015 he applied chap35 award and he got approve from VA on 2 /2016  and he return the VA letter that he want the  pay from effective 8/2015 and called VA if he still need some paper information and they said it is done and just to wait ... But we wait until now no any response and no money and tow more years son will graduate. So what we need to do or still wait until he graduate then VA will pay the whole money for the education?  Thanks