Citation Nr: 0007167 Decision Date: 03/16/00 Archive Date: 03/23/00 DOCKET NO. 96-27 517 A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether termination of entitlement to dependents' educational assistance benefits, pursuant to 38 U.S.C. Chapter 35, effective March 1, 1996, was appropriate. ATTORNEY FOR THE BOARD H. Roberts, Counsel INTRODUCTION The veteran served on active duty from December 1944 to May 1946. The veteran died on June [redacted], 1992. The appellant is a surviving child of the veteran. This appeal arises before the Board of Veterans' Appeals (Board) from an April 1996 administrative error decision of the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA), which terminated the appellant's entitlement to dependents' educational assistance benefits pursuant to 38 U.S.C. Chapter 35. FINDINGS OF FACT 1. The veteran served on active duty from December 1944 to May 1946, and the veteran died on June [redacted], 1992. 2. A January 1995 rating decision found that the veteran's death resulted from his having contracted the human immunodeficiency virus (HIV) while being treated by VA. 3. The appellant's last erroneous payment of educational assistance benefits was on March 1, 1996, and erroneous payment of those benefits was discontinued as of that date. CONCLUSION OF LAW The termination of entitlement to dependents' educational assistance benefits, pursuant to 38 U.S.C. Chapter 35, effective March 1, 1996, was appropriate. 38 U.S.C.A. §§ 1151, 3501, 5107 (West 1991); 38 C.F.R. § 21.4135 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant contends that the termination of entitlement to dependents' educational assistance benefits, pursuant to 38 U.S.C. Chapter 35, effective March 1, 1996, was inappropriate. The appellant specifically contends that due process was not followed in the termination of her benefits. After a review of the record, the Board finds that the appellant's contentions are not supported by the evidence, and her claim is denied. In this claim, the veteran served on active duty from December 1944 to May 1946, and the veteran died on June [redacted], 1992. A January 1995 rating decision found that the veteran's death resulted from his having contracted the human immunodeficiency virus (HIV) while being treated by VA and granted entitlement to compensation and dependency and indemnity compensation pursuant to 38 U.S.C. § 1151 as the veteran's disability and death had resulted from treatment by VA. For the purposes of dependents' educational assistance under 38 U.S.C. Chapter 35, the child of a veteran will have basic eligibility if the veteran was discharged from service under conditions other than dishonorable or died in service; and has a permanent total service-connected disability; or a permanent total service- connected disability was in existence at the date of the veteran's death; or the veteran died as a result of a service-connected disability. 38 U.S.C.A. § 3501 (West 1991); 38 C.F.R. § 3.807 (1999). A review of the record fails to indicate that basic eligibility is established for dependents' educational assistance under 38 U.S.C.A. Chapter 35. Service connection was not in effect for any disorder at the time of the veteran's death. The January 1995 rating decision granted entitlement to compensation pursuant to 38 U.S.C. § 1151 retroactive to prior to the veteran's death, however, the veteran had not established entitlement to service connection for any disability. Therefore, a permanent and total evaluation based on service-connected disability was not in effect at the time of the veteran's death. Entitlement to receipt of compensation for AIDS under the provisions of 38 U.S.C. § 1151 was established prior to the veteran's death. The appellant argues that this should entitle her, the veteran's surviving child, to eligibility to dependents' educational assistance benefits pursuant to 38 U.S.C. Chapter 35. However, the Board notes that 38 U.S.C.A. § 1151 states that Compensation under this chapter and dependency and indemnity compensation under chapter 13 of this title shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. 38 U.S.C.A. § 1151 (West 1991 & Supp. 1999). The Board notes that 38 U.S.C. § 1151 has been amended from that version in effect at the time of the termination of the appellant's benefits, effective October 1, 1997. See, Pub L. No. 104-204, § 422(a), 110 Stat. 2926 (1996). The previous version provided that disability or death compensation under this chapter and dependency and indemnity compensation under chapter 13 of this title shall be awarded in the same manner as if such disability, aggravation, or death were service-connected. 38 U.S.C.A. § 1151 (West 1991 & Supp 1996). The United States Court of Appeals for Veterans Claims has held that for the purpose of appeals, where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant should be applied unless provided otherwise by statute. Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991). Therefore, the Board will evaluate the appellant's claim pursuant to both sets of laws to determine which is more favorable to the appellant. In this case, the Board finds that the statute and the amended statute are substantively similar and when applied to the appellant's claim are equally unfavorable. The plain meaning of 38 U.S.C. § 1151 is unambiguous, that benefits are granted for a disability or death "as if" service-connected. The statute also clearly applies only to applicable benefits under 38 U.S.C. Chapter 11 or 38 U.S.C. Chapter 13. The benefit at issue is entitlement to dependents' education assistance benefits pursuant to 38 U.S.C. Chapter 35. Therefore, it is apparent that there is no eligibility for benefits for the appellant under 38 U.S.C. Chapter 35 where benefits have been granted for the veteran's disability pursuant to 38 U.S.C. § 1151.. See, Mintz v. Brown, 6 Vet. App. 277 (1994). Additionally, 38 C.F.R. § 3.807, the regulation which provides the criteria for entitlement to dependents' educational assistance benefits specifically excludes dependents' educational assistance where eligibility for service-connected benefits is established under 38 C.F.R. § 3.800, the regulation which provides for entitlement to benefits pursuant to 38 U.S.C. § 1151. Thus, the Board finds that the appellant can not establish entitlement to dependents' educational assistance benefits pursuant to 38 U.S.C. Chapter 35. However, in this case, the May 1995 letter which informed the appellant's mother that she was entitled to dependency and indemnity compensation also erroneously informed her that the appellant was eligible for dependents' educational assistance benefits. The appellant applied for dependents' education assistance benefits in June 1995 and those benefits were paid until March 1, 1996. An April 1996 administrative error decision found that the appellant was erroneously paid dependents' educational assistance benefits in the amount of $4,174.66. That decision terminated those payments effective March 1, 1996, the date of the last payment to the appellant. The decision also found that since the appellant was not at fault in the creation of the overpayment of $4,174.66, she would not be held accountable for the debt. The pertinent regulation provides that where educational assistance benefits are being discontinued due to VA administrative error, the effective date of the discontinuance shall be the date of the last payment on an erroneous award based solely on administrative error by VA or error in judgment by VA. 38 C.F.R. § 21.4135(p)(2) (1999). The appellant's educational assistance benefits were terminated effective March 1, 1996, the date of the last payment on the erroneous award of benefits based solely on administrative error by VA. Accordingly, the Board finds that the termination of entitlement to dependents' educational assistance benefits, pursuant to 38 U.S.C. Chapter 35, effective March 1, 1996, was appropriate. 38 U.S.C.A. §§ 1151, 3501, 5107 (West 1991); 38 C.F.R. § 21.4135 (1999). (CONTINUED ON NEXT PAGE) ORDER The termination of entitlement to dependents' educational assistance benefits, pursuant to 38 U.S.C. Chapter 35, effective March 1, 1996, was appropriate. M. W. GREENSTREET Member, Board of Veterans' Appeals