PREC 8-2004      Application of 38 C.F.R. §§ 3.105(a), 3.400(k), 21.3040(d) and 21.3041(d) to Claims for Education Assistance Benefits under Chapter 35, Title 38, United States Code 

     Citation: Vet. Aff. Op. Gen. Couns. Prec. 8-2004, VAOPGCPREC 8-2004, 2004

QUESTIONS

(a) Does the age limitation for payment of chapter 35 benefits contained at 38 C.F.R. §§ 21.3040(d) and 21.304(d) apply to the exception to the basic eligibility period for receipt of chapter 35 benefits contained at 38 U.S.C.A. § 3512(a)(3)?

(b) What is the effect of revision of a rating under 38 C.F.R. § 3.105(a) as regards the period of eligibility for chapter 35 benefits?  Did VA "first find" the veteran in this case permanently and totally disabled in November 1999, when the corrected decision was made, or in August 1986, which was the effective date under 38 C.F.R. § 3.400(k) for that rating?

HELD:

(a)  An extension of an eligible child's chapter 35 eligibility period under 38 U.S.C. § 3512(a)(3) may be granted beyond age 31.  To the extent 38 C.F.R. § 3041(d) purports to bar extensions of the basic eligibility period beyond age 31 in circumstances other than as described in either 38 U.S.C. § 3512(a)(4) (following service on active duty); § 3512(a)(5) (following the date the child became eligible based on the parent being a member of the Armed Forces missing in action, captured by a hostile force, or forcibly detained or interned by a foreign government or power pursuant to § 3501(a)(1)(A)(iii)); or § 3512(c) (following suspension of the child's program for reasons beyond the child's control0, it is ultra vires and of no effect.

(b)  The effect of finding clear and unmistakable error ("CUE") is that the corrected decision is considered made on the date of the reversed decision.  38 C.F.R. § 3.105(a).  Based on CUE, the veteran in this case was found entitled to compensation for permanent and total service-connected disability ("P&T") effective August 19, 1986.  As of the same date, each of the veteran's sons thereby became an "eligible person" (defined in 38 U.S.C. § 3501(a)(1)(A)(ii)) entitled to chapter 35 education benefits.  Such entitlement may be used during an 8-year eligibility period determined pursuant to 38 U.S.C. § 3512, but in no event before the date when the affected child became an "eligible person" (i.e., August 19, 1986).

(c)  The basic chapter 35 eligibility period under section 3512(a) runs from the child's 18th birthday to the child's 26th birthday, but exceptions exist.  Under the "first finds" exception, when the effective date of the veteran's P&T disability is between the child's 18th and 26th birthdays, section 3512(a)(3), as in force in November 1999, establishes, by operation, the beginning date for the child's eligibility period as the date the Secretary first finds that the parent from who eligibility is derived has a service-connected disability permanent in nature.  The term "first finds" is defined in subsection 3512(d) to mean the effective date of the parent's P&T rating or the date of notification to the parent, whichever is more advantageous to the eligible person.  Thus, a child's chapter 35 eligibility period must be determined on the facts found and based on the eligibility-period-beginning date that is more advantageous to the child pursuant to the application of both section 3512(a)(3) and section 3512(d).  In addition, an award of chapter 35 benefits is predicated on the timely filing of a claim therefor.  38 U.S.C. § 3513; 38 C.F.R. § 21.1029.  The date of claim is an integral factor in determining the date from which benefits may be awarded, pursuant to 38 U.S.C. § 5113, for pursuit of an approved program of education pursued during the child's established chapter 35 eligibility period.