Citation Nr: 0005702 Decision Date: 03/02/00 Archive Date: 09/08/00 DOCKET NO. 98-12 547 DATE MAR 2, 2000 On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code, for periods of enrollment prior to April 3, 1997. ATTORNEY FOR THE BOARD David S. Nelson, Associate Counsel INTRODUCTION The veteran had active military service from August 1967 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1998 determination from the Buffalo, New York, Department of Veterans Affairs (VA) Regional Office (RO), which denied the benefit sought on appeal. A notice of disagreement was received in June 1998, and a statement of the case was issued in July 1998. The appellant's substantive appeal was received in July 1998. The appellant is the veteran's daughter. FINDINGS OF FACT 1. In January 1998, the veteran was awarded a total rating for individual unemployability as a result of service-connected disabilities effective December 7, 1992, and basic eligibility for Chapter 35 benefits was established effective December 7, 1992; the veteran was notified of that decision by VA letter dated in March 1998. 2. The appellant's formal claim for educational assistance benefits (Application for Survivors' and Dependents' Educational Assistance and enrollment certification) was received by VA on April 3, 1998. CONCLUSION OF LAW The requirements for an award of educational assistance benefits under Chapter 35 for any period of enrollment prior to April 3, 1997 have not been met. 38 U.S.C.A. 3512, 5107 (West 1991); 38 C.F.R. 21.3021, 21.3046, 21.4131 (1998); 38 C.F.R. 21.3046, 21.4131 (effective from June 3, 1999). - 2 - REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant contends that because her basic eligibility for Chapter 35 benefits was established effective December 1992, she should receive retroactive Chapter 35 benefits for all periods of enrollment from that date. Basic eligibility for Chapter 35 benefits is established in one of several ways, including being the child of a veteran who has a total and permanent disability rating from a service-connected disability. 38 U.S.C.A. 3501(a)(1)(A) (West 1991); 38 C.F.R. 21.3021 (1999). In a January 1998 rating decision, the RO awarded the veteran a total rating for individual unemployability as a result of service-connected disabilities effective December 7, 1992. By virtue of the January 1998 rating decision, basic eligibility for Chapter 35 benefits for the appellant was established effective December 1992. However, the issue in this case is not whether the appellant is eligible for Chapter 35 benefits. Instead, the issue that must be decided is what is the proper commencing date for the award of Chapter 35 educational assistance benefits. The Board observes that during the pendency of this appeal, effective June 3, 1999, substantive changes were made to the criteria for establishing commencing dates of an award of chapter 35 educational assistance benefits. The United States Court of Appeals for Veterans Claims (Court) has held that where the law or regulation changes after a claim has been filed or reopened, but before the appeal process has been concluded, the version most favorable to the claimant will apply. Karnas v. Derwinski, 1 Vet. App. 308 (1991). It appears that the RO did apply the changes in the regulations. The Board finds that in the present appeal, regardless of whether the old or current version of the regulations is applied, the outcome is the same in this case, and the Board will proceed with disposition of this appeal. See Bernard v. Brown, 4 Vet. App. 384 (1993). 3 - Prior to June 3, 1999, the law prohibited an award of Chapter 35 educational assistance for any period earlier than one year prior to the date of receipt of the initial application or enrollment certification, whichever is later. According to the amended regulations (in pertinent part), if the award is the first award of educational assistance for the program of education the eligible person is pursuing, the commencing date of the award of educational assistance is the latest of: (1) the beginning date of eligibility, as determined by 38 C.F.R. 21.3046; or (ii) one year before the date of the claim. As noted, in January 1998 the veteran was granted a total rating for individual unemployability as a result of service-connected disabilities, effective December 7, 1992. On April 3, 1998, the RO received the appellant's Application for Survivors' and Dependents' Educational Assistance and enrollment certification. She indicated that she was seeking retroactive payment for college coursework completed from September 1992 to June 1996. By VA letter dated in May 1998, the appellant was informed that education benefits could not be granted for a period earlier than I year before the date her enrollment certification and application were received, or April 3, 1997. The appellant disagreed with the commencement date of the award of Chapter 35 benefits, and initiated this appeal. As the appellant's Application for Survivors' and Dependents' Educational Assistance and enrollment certification were not received until April 3, 1998, the commencing date of an award of educational assistance benefits could not begin earlier than one year prior to the date of receipt of the application and enrollment certification. Based on the above, under either the old or new criteria, the proper commencing date for the appellant's award of Chapter 35 educational assistance benefits is April 3, 1997. Therefore, it is clear that Chapter 35 educational assistance benefits are not payable for any period prior to April 3, 1997. - 4 - The Court has held that a claimant of Chapter 35 educational benefits is not entitled to retroactive benefits if his or her education was not impeded or interrupted by the VA's delay in granting service connection for his or her father's death. See Erspamer v. Brown, 9 Vet. App. 507, 509 (1996). Though the instant case involves a total and permanent disability rating, and not service-connection for death, the Board finds the holding controlling in either situation. The Court in Erspamer remarked that Chapter 35 benefits were instituted to provide dependents educational opportunities which would otherwise be impeded or interrupted by reason of the disability or death of a parent from a disease incurred in service, and to ensure that such dependents were aided in attaining the educational status which they might have aspired to and obtained if the parent had not died. Id. at 509. There is nothing in the record to indicate that the appellant's education has been impeded or interrupted by any reliance upon any action of the VA in regard to the veteran's claim for a total rating for individual unemployability. Thus, while the Board is sympathetic to the appellant's arguments, the Board notes that similar arguments were clearly rejected by the Court in Erspamer. While the Board is cognizant of the appellant's argument that she could not file an application and enrollment application at the time her basic eligibility for Chapter 35 benefits was established, the regulatory criteria and legal precedent governing eligibility for Chapter 35 education benefits are clear and specific, and the Board is bound by them. Under governing law, there is no basis on which to grant the appellant the retroactive Chapter 35 benefits that she is seeking. As the disposition of this claim is based on the law, and not on the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 5 - ORDER The appeal is denied. ALAN S. PEEVY Member, Board of Veterans' Appeals - 6 -