PREC 13-99    Date of Claim in a Montgomery GI Bill Case    Citation: Vet. Aff. Op. Gen. Couns. Prec. 13-99,  VAOPGCPREC 13-99, 1999

ISSUES:

1. Does a liberalizing precedent opinion of General Counsel have the effect of overruling previous final decisions of the VA agency of jurisdiction?

2. If the answer is affirmative, is VA obligated to award retroactive educational assistance benefits based on new evidence received in support of a claim finally denied before the liberalizing General Counsel opinion was issued?

3. May VA pay benefits under the Montgomery GI Bill (MGIB) when no claim was filed by the veteran, but proof of enrollment in qualifying training is submitted by or on behalf of the veteran?

CONCLUSIONS:

1. A precedent VA General Counsel opinion that invalidates or liberalizes an existing regulatory or statutory interpretation may have retroactive effect in regard to a claim still open on direct review, but can have no such effect on a finally adjudicated agency decision.

2. In view of the preceding conclusion, it is unnecessary to address the second inquiry.

3. Under the facts given, potentially the earliest indication of the veteran’s intent to claim benefits for education he pursued in 1995 would be the submission in 1999 of an enrollment certification form. Those facts, however, are insufficient to enable forming an opinion about whether submission of the enrollment form constituted an "informal claim" within the meaning of 38 C.F.R. § 21.1029(d)(2) and, consequently, about the nature of VA’s responsibility to act on that submission. It does seem clear that the veteran, thereafter, did not file a formal claim for his 1995 enrollment, as required by 38 U.S.C. § 5101(a). Nevertheless, even if he had, we find the provisions of 38 C.F.R. § 21.7131(a) would have precluded paying benefits based on that claim. That regulation provides that no educational assistance benefits may be paid for education/training received prior to a date 1 year before a claim therefor is filed.