BVA9504675 DOCKET NO. 92-53 194 DATE FEB 07 1995 RECONSIDERATION On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to retroactive payment of benefits under the Restored Entitlement Program for Survivors (REPS) for a period prior to January 1991. ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had almost continuous active service from 1941 to 1962. He died in April 1978. Service connection for the cause of the veteran's death was granted in October 1988. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of October 1991 by the Department of Veterans Affairs (VA) St. Louis, Missouri, Regional Office (RO). The decision awarded the appellant REPS benefits effective from June 1991. The appellant is one of the veteran's children. In a decision in September 1993, the Board denied the appellant's appeal. Reconsideration of the Board's decision was subsequently ordered and this decision replaces the Board's September 1993 decision. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the RO made a mistake by denying retroactive payment of REPS benefits for a period of time prior to January 1991. He asserts that he should be paid REPS benefits for the period from August 1988 to December 1990, during which time he was enrolled full time in a post secondary school. He asserts that if he had known prior to January 1991 that he was eligible to receive REPS benefits, he would have submitted a claim earlier. He states that his claim for retroactive benefits should not be denied because the VA failed to notify him that he was eligible to receive REPS benefits. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports the claim for retroactive payment of REPS benefits. FINDING OF FACT The appellant first became eligible for REPS benefits in August 1988 when he was age 18 and enrolled till time in an approved post secondary school. CONCLUSION OF LAW The requirements for granting retroactive REPS benefits effective from August 1988 are met. 38 C.F.R. 3.812(f) (1993). REASONS AND BASES FOR FINDING AND CONCLUSION REPS benefits provide a special allowance to certain surviving spouses and children and are a replacement for certain Social Security benefits which were either reduced or terminated by the Omnibus Budget Act of 1981. Among those who are potentially eligible for REPS benefits are parents of children between the ages of 16 and 18 (who are eligible for "mother's benefits"), and unmarried children of the veteran between the ages of 18 and 22 who are attending a post secondary school on a full time basis (who are eligible for "child's benefits"). The essential facts in this case are not in dispute. The appellant reached age 18 in July 1988. He first became eligible for REPS benefits in August 1988 when he enrolled full time in an approved post secondary school. The eligibility continued for the period from August 1988 to December 1990, during which time he continued to be enrolled full time in a post secondary school. The appellant's first application for REPS benefit was not received by the RO until January 1991. In a letter of May 1991, the RO notified the appellant that his claim for benefits was denied because he was attending school at less than the full time rate. He was advised that, once he resumed full time training, he could reapply for benefits. A second application for REPS benefits from the appellant was received by the RO in June 1991 and showed that he had resumed fall time school attendance. Subsequently, the RO granted the claim for REPS benefits effective from June 1991. According to the provisions of 38 C.F.R. 3.812(f), retroactive REPS benefits may only be paid under certain circumstances. In relevant part, the regulation provided that benefits could be paid from the first day of the month in which the claimant first became eligible if application was filed within eleven months following that month. With respect to any claim not filed within that eleven-month period, benefits were payable only for those periods of eligibility beginning on or after the first day of the month in which the claim was received. By applying this regulation, the RO determined that the appellant in this case was not entitled to retroactive REPS benefits for a period prior to January 1991, because his application had not been received within eleven months of the date that he first became eligible for REPS benefits. Further, the United States Court of Veterans Appeals (Veterans Court) had held that VA did not have a duty to provide personal notice of eligibility for REPS benefits. See Hill v. Derwinski, 2 Vet.App. 451 (1991). The determination by the RO was correct under the regulation which was in effect at that time. Significantly, however, in Cole v. Derwinski, 2 Vet.App. 400 (1992), the Veterans Court held invalid subparagraphs (2) and (3) of 38 C.F.R. 3.812(f), which imposed the time-specific filing requirements for claims for "mother's benefits" under the REPS program. Those provisions were found to be invalid as in excess of statutory authority. The Secretary appealed Cole to the United States Court of Appeals for the Federal Circuit (Federal Circuit Court). Similarly, Skinner v. Brown, 4 Vet.App. 141 (1993), involved an analogous provision of REPS law, the "child's benefit." The Veterans Court reversed the decision of the Board in that case because the Board's "conclusion of law rested solely upon 38 C.F.R. 3.812(f)(3), which the Court invalidated in Cole". See Skinner v. Brown, 4 Vet.App. at 144. The Secretary also appealed the Skinner case to the Federal Circuit Court. On June 22, 1994, the Federal Circuit Court issued a decision in Skinner v. Brown, 27 F.3d 1571 (Fed.Cir. 1994). Agreeing with the Veterans Court, the Federal Circuit Court held 38 C.F.R. 3.812(f)(2)-(3) to be invalid as in excess of statutory authority. Subsequently, the Federal Circuit Court issued its decision in Cole, holding that 38 C.F.R. 3.812(f)(2)-(3) was no more permissible than it was in Skinner. See Cole v. Derwinski, 2 Vet.App. 400 (1992), aff'd sub nom. Cole v. Brown, 35 F.3d 551 (Fed. Cir. 1994). On September 29, 1994, the Federal Circuit Court issued an order in Skinner denying the VA Secretary's petition for rehearing and declined his suggestion for rehearing en banc. The Board has been informed that the Secretary will take no further appeal in either Cole or Skinner. In light of the Federal Circuit Court's decisions in Cole and Skinner, 38 C.F.R. 3.812(f)(2)-(3) must be considered to be an invalid regulation in excess of the Secretary's statutory authority to prescribe regulations to implement the REPS law. Therefore, the time limit for filing a claim for retroactive REPS benefits no longer applies. The benefits may be paid from the first date of eligibility. The appellant first became eligible for REPS benefits in August 1988 when he was age 18 and enrolled full time in an approved post secondary school. Accordingly, the Board concludes that the appellant is entitled to retroactive payment of REPS benefits from August 1988. ORDER The appellant is entitled to retroactive payment of REPS benefits effective from August 1988. The benefit sought on appeal is allowed. EILEEN M. KRENZER GORDON H. SHUFELT CHARLES E. HOGEBOOM JAMES R. ANTHONY ROBERT D. PHILIPP GARY L. GICK Members, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.