Citation Nr: 0006065 Decision Date: 03/07/00 Archive Date: 03/14/00 DOCKET NO. 98-05 990 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an award of educational assistance benefits, under Chapter 35, Title 38, United States Code. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Helinski, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 1997 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the benefit sought on appeal. The appellant is the surviving spouse of the veteran, who had active military service from October 1972 to April 1976; he died on April [redacted], 1976. FINDINGS OF FACT 1. In a December 1976 rating decision, the RO granted service connection for the cause of the veteran's death, effective April [redacted], 1976, which is the date he died. 2. In conjunction with the foregoing rating decision, the appellant was furnished VA Form 21-6753, "Original or Amended Dependency and Indemnity Compensation Award," which included an explanation of the conditions affecting the right to payments, as well as information on Dependent's Education Assistance, under Chapter 35, Title 38, United States Code. 3. In November 1997, the RO received the appellant's Application for Survivors' and Dependents' Educational Assistance, in which she requested reimbursement for education tuition. CONCLUSION OF LAW There is no legal basis for an award of educational assistance benefits under Chapter 35, Title 38, United States Code. 38 U.S.C.A. §§ 3500, 3512 (West 1991); 38 C.F.R. §§ 21.3021, 21.3046, 21.4131(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The present appeal arises from the appellant's claim of entitlement to Survivors' and Dependents' Educational Assistance, under Chapter 35, Title 38, United States Code. The appellant is the surviving spouse of the veteran, who had active military service from October 1972 to April 1976. The veteran died on April [redacted], 1976, and his death was service- connected from that date. In connection with this appeal, in November 1997, the RO received the appellant's Application for Survivors' and Dependents' Educational Assistance, in which she requested educational assistance benefits. Essentially, she indicated on her application that she wanted to be reimbursed for tuition she had already paid. In a November 1997 determination, the RO denied the appellant's request for Chapter 35 benefits on the basis that the appellant's ten year delimiting date for utilizing Chapter 35 benefits had expired on April [redacted], 1986. The appellant disagreed with that determination, and initiated this appeal. Essentially, the appellant contends that she was never made aware of her potential entitlement to Chapter 35 benefits until recently. She maintains that she spoke to a VA representative in 1986, and was told that she was not eligible for education assistance. Further, she maintains that she had to delay her pursuit of education, so she could care for her children. As such, she did not begin to pursue her education until 1990. She feels that she should fall under a hardship exception. The Board has thoroughly reviewed the evidence in the appellant's Chapter 35 file, in conjunction with the applicable legal criteria set forth below. However, the Board must conclude that there is no legal basis for the appellant's claim, and her appeal is denied. According to the law, basic eligibility for educational assistance benefits under Chapter 35, Title 38, United States Code, may be established in several ways, including being the surviving spouse of any person who died of a service- connected disability. 38 U.S.C.A. § 3501(a)(1)(B) (West 1991); 38 C.F.R. § 21.3021(a)(2)(i) (1999). Chapter 35 benefits for a surviving spouse are available for a 10 year period, not to begin prior to the date of the death of the spouse from whom eligibility is derived. 38 U.S.C.A. § 3512(b); 38 C.F.R. § 21.3046(b). Further, the surviving spouse may not be afforded educational assistance beyond 10 years after the date of the death of the spouse from whom eligibility is derived who dies while a total disability evaluated as permanent in nature was in existence, or who died as a result of a service-connected disability. 38 U.S.C.A. § 3512(b)(1)(B), (C). Notwithstanding the 10 year limitation, in the case of any eligible person who was prevented from initiating or completing a program of education within the 10 year period because of a physical or mental disability which was not a result of the person's own willful misconduct, such person shall, under certain circumstances, be granted an extension of the delimiting period upon application made within one year of the last date of the delimiting period, or the later of either October 1, 1980, or the date of the termination of the period of mental or physical disability. 38 U.S.C.A. § 3512(b)(2). Based on the foregoing, the law is clear that although the appellant may have had met the basic eligibility criteria for Chapter 35 benefits, see 38 U.S.C.A. § 3501(a)(1)(B) and 38 C.F.R. § 21.3021(a)(2)(i), such benefits are only available for a 10 year period. See 38 U.S.C.A. § 3512(b); 38 C.F.R. § 21.3046(b). As the appellant in this case did not apply for Chapter 35 benefits until long after the 10 year period following the veteran's death had passed, there is simply no basis for payment of Chapter 35 benefits. The Board acknowledges the appellant's contention that she was misinformed by a VA representative as to her eligibility to receive Chapter 35 benefits. Nevertheless, as set forth above, the law is quite specific about the time period for utilizing Chapter 35 eligibility. In this case, the appellant simply filed her claim past the ten year period following the veteran's death, and on that basis her claim must fail. Furthermore, the appellant did not present evidence that she had a physical or mental disability that prevented her from pursuing a program of education, nor did she make a timely request for an extension of her 10 year period for utilizing Chapter 35 benefits. In that regard, the appellant indicated that she was unable to begin school until 1990, since she had to care for her disabled father. Nevertheless, her application for education benefits was not received by the RO until several years later. More importantly, the law does not provide for an extension of the Chapter 35 delimiting date based on such factors as caring for an ill relative. Finally, the Board acknowledges the appellant's representative's argument that the appellant was not furnished with a VA Form 22-5490, Application for Survivors' and Dependents' Educational Assistance, at the time of the December 1976 rating decision. The Board also acknowledges the appellant's contention that she was never notified of her entitlement to education benefits. However, the record reveals that following the December 1976 rating decision that awarded service connection for the cause of the veteran's death, the appellant was furnished VA Form 21-6753, "Original or Amended Dependency and Indemnity Compensation Award," which included an explanation of the conditions affecting the right to payments, as well as information on entitlement to Dependent's Education Assistance, under Chapter 35, Title 38, United States Code. This fact is reflected on VA Form 20-822a, Control Document and Award Letter. Therefore, although the appellant may have later received conflicting information from a VA representative, as she contends, the Board finds that the VA satisfied its duty of informing the appellant of her right to Chapter 35 benefits. In conclusion, as analyzed above, there is no legal basis for current or retroactive payment of educational assistance benefits pursuant to Chapter 35, Title 38, United States Code, and the appellant's claim must fail. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (where the law is dispositive, the claim should be denied on the basis of the absence of legal merit). ORDER The appellant's claim for entitlement to an award of educational assistance benefits, under Chapter 35, Title 38, United States Code, is denied. S. L. KENNEDY Member, Board of Veterans' Appeals