UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 98-57
CATHERINE A. OZER, APPELLANT ,
V.
A NTHONY J. PRINCIPI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Decided February 6, 2001 )
Steven A. Alerding, of Washington, D.C., was on certain of the pleadings for the appellant.
Leigh A. Bradley, General Counsel; Ron Garvin, Assistant General Counsel; Mary Ann
Flynn, Acting Deputy Assistant General Counsel; Brian D. Rippel; and Gregory W. Fortsch, all of
Washington, D.C., were on the pleadings for the appellee.
Robert V. Chisholm, of Providence, Rhode Island, was on the brief for the National
Organization of Veterans' Advocates, as amicus curiae.
Before HOLDAWAY, IVERS, and STEINBERG, Judges.
STEINBERG, Judge: The appellant, Catherine A. Ozer, wife of Vietnam veteran Philip Ozer,
appeals a September 16, 1997, decision of the Board of Veterans' Appeals (BVA or Board) that
denied entitlement to dependents' educational assistance (DEA) under chapter 35 of title 38, U.S.
Code. Record (R.) at 3. The appellant filed pro se an informal brief, and the Secretary filed a motion
for single-judge affirmance. On May 4, 2000, the Court ordered the parties to file supplemental
memoranda, Ozer v. West, 13 Vet.App. 458 (2000) (per curiam order), and counsel subsequently
entered the case on behalf of the appellant. The Court has received responses to its May 2000 order
from the parties and from the National Organization of Veterans' Advocates as amicus curiae in
support of the appellant's claim. This appeal is timely, and the Court has jurisdiction pursuant to
38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the Court will reverse the BVA
decision and remand the matter.
I. Background
The appellant is the wife of Philip Ozer [hereinafter the veteran], who served on active duty
in the U.S. Army from November 1966 to April 1979, including service in Vietnam. R. at 9. In
August 1979, a Department of Veterans Affairs (VA) regional office (RO) awarded the veteran a
combined VA service-connected rating of 90%, for numerous service-connected conditions,
including depression associated with organic brain syndrome due to trauma and a grand-mal-seizure
disorder, and a rating of total disability based on individual unemployability effective on April 6,
1979, the day after he was discharged from military service. R. at 19, 22. In June 1980, the VARO
determined that the veteran "became permanently disabled in service" and awarded him a total
(100%) disability rating. R. at 27-28. That RO decision also established "[e]ntitlement to benefits
under [c]hapter 35, 38 U.S.C., . . . from 4-6-79." R. at 28. Apparently, for reasons that are not clear,
the RO revisited the identical issue in July 1983, when it issued a confirmed rating decision that
found the veteran to be "severely disabled and unemployable", and noted: "Basic elig. to Chpt. 35
is established from 5-22-83." R. at 34.
The record on appeal (ROA) contains a copy of an August 1983 letter from the RO to the
veteran that notified him of his July 1983 award but that was silent as to the specific issue of chapter
35 eligibility; the letter did inform the veteran that the amount of his monthly benefits was $1,437.00
and that that "amount include[d his] wife, mother[,] and two children". R. at 36. The appellant and
amicus curiae both argue that notice of the 1983 RO decision was not properly effectuated as to
eligibility for DEA. Appellant's September 7, 2000, Memorandum (Mem.) at 7-11; Brief of Amicus
Curiae at 7-10 [hereinafter Amicus Br.].
In July 1994, the appellant submitted to the RO an enrollment certification regarding her
pursuit of a degree in nursing at San Antonio College in Texas. R. at 45-47. On August 8, 1994,
according to a VA report of contact, the veteran was "extremely upset because his current wife had
found out that his ex-wife was on VA records and she[, i.e., the appellant,] couldn't apply for" DEA.
R. at 49. The veteran was advised to "come to VA office and get matter resolved". Ibid. In a
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statement dated three days later, the veteran notified VA that his "present wife wishe[d] to attend
school under [his] VA benefits." R. at 41. He indicated that since 1979 he had twice been divorced
and remarried, and explained that his organic brain syndrome affected his memory so that "[i]f [he]
did forget to let VA know of [his] divorce and remarriages it [was] a result of [that] disability." Ibid.
Attached to the veteran's statement was a Declaration of Status of Dependents form that indicated
that he had divorced "Candace Ozar" in May 1979, had been married to "Blanch Farris" from
January 1983 to January 8, 1988, and had married the appellant on January 28, 1988. R. at 42.
The RO in September 1994 denied the appellant's claim for DEA, and stated: "To be eligible
for this benefit, a spouse must use the available entitlement within their [sic] delimiting period,
which is 10 years from the effective date of the permanent and total rating, or the notification date
of the rating of the disabled veteran." R. at 51. The RO reasoned that the effective date of the
veteran's total rating had been in May 1983 and that DEA eligibility based on that rating had expired
in May 1993; thus, the RO concluded that the appellant was not eligible for DEA for a program of
education begun in August 1994. Ibid. The appellant timely appealed to the Board. R. at 54, 69.
In her October 1994 Notice of Disagreement, as well as in sworn testimony given before the RO in
June 1995, she explained that prior to 1994 she had not been able to pursue a program of education
because she had been caring for both the veteran and her disabled child, but that her parents had been
available as of 1994 to help provide that care. R. at 54, 76-77. She also submitted a May 1995 letter
from a private therapist that described the appellant as "the care-taker [sic] for [the veteran] and their
family". R. at 74. In April 1996, the RO found the veteran incompetent for purposes of handling
his own VA funds. R. at 88.
In the September 16, 1997, BVA decision here on appeal, the Board denied the appellant's
claim for DEA. R. at 3.
II. Analysis
A. Preliminary Matter
The Court has received two responses from the appellant to the Court's May 2000
supplemental-briefing order; the first was received on August 4, 2000, and the other on September 7,
2000. Predating both of these filings was an August 1, 2000, request for an extension of time to file
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her response, which was otherwise due on August 4, 2000. The Court did not act on that extension
motion until after August 4, 2000, and thus it appears that the appellant's August 4, 2000,
memorandum was submitted in order to comply with the August 4, 2000, deadline that, at that time,
was in effect. After the Court granted the requested extension, she filed her September 7, 2000,
memorandum. The second filing does not address the first memorandum, nor has the appellant at
any time filed a document with the Court to explain the double filing. The second memorandum
appears to be identical to the first memorandum in all important respects, and the Secretary has not
objected to the double filing.
Rather than further delay this case by ordering the appellant to clarify which response she
intends as her response to the Court's order, the Court assumes that the more recent, September 7,
2000, memorandum, is the document that the appellant intends to represent her response to the
Court's May 2000 order. We assume this because it was filed after a requested extension had been
granted and because, if the appellant had wished her first memorandum to serve as her response,
there would have been no reason for her to file a second memorandum. Hence, the Court will direct
the Clerk of the Court to file the September 7, 2000, memorandum on the day that it was received
and to return to the appellant her August 4, 2000, memorandum.
B. Applicable Law
It is not disputed that any DEA eligibility to which the appellant may be entitled would arise
under 38 U.S.C. § 3501(a)(1)(D), which defines as a person eligible for DEA, inter alia, "the spouse
of any person who has a total disability permanent in nature resulting from a service-connected
disability". The period of time during which a person is eligible for DEA under section
3501(a)(1)(D) is set forth in 38 U.S.C. § 3512, which states, in pertinent part:
(b)(1) No person made eligible by section 3501(a)(1) . . . (D) of this title may
be afforded educational assistance under this chapter beyond 10 years after
whichever of the following last occurs:
(A) The date on which the Secretary first finds the spouse
from whom eligibility is derived has a service-connected total
disability permanent in nature.
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(B) The date of death of the spouse from whom eligibility is
derived who dies while a total disability evaluated as permanent in
nature was in existence.
(C) The date on which the Secretary determines that the
spouse from whom eligibility is derived died of a service-connected
disability.
....
(3)(A) Notwithstanding the provisions of paragraph (1) of this subsection, any
eligible person (as defined in clause (B) or (D) of section 3501(a)(1) of this title)
may, subject to the approval of the Secretary, be permitted to elect a date referred to
in subparagraph (B) of this paragraph to commence receiving educational assistance
benefits under this chapter. The date so elected shall be the beginning date of the
delimiting period applicable to such person under this section.
(B) The date which an eligible person may elect under subparagraph (A) of
this paragraph is any date during the period beginning on the date the person became
an eligible person within the meaning of clause (B) or (D) of section 3501(a)(1) of
this title and ending on the date determined under subparagraph (A), (B), or (C) of
paragraph (1) of this subsection to be applicable to such person.
38 U.S.C. § 3512(b) (emphasis added). The Secretary's regulation implementing section 3512
provides, in pertinent part:
This section states how VA will compute the beginning date, the ending date
and the length of a spouse's . . . period of eligibility. The period of eligibility of a
spouse computed under the provisions of paragraph (a) of this section will be
recomputed under the provisions of paragraph (b) of this section if her or his status
changes to that of surviving spouse.
(a) Beginning date of eligibility period - spouses. . . .
(2) The beginning date of eligibility--
....
(ii) For spouses for whom VA made a final determination of eligibility before
October 28, 1986, shall be--
(A) The effective date of the rating, or
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(B) The date of notification, whichever is more advantageous to the
spouse.
....
(c) Ending date of eligibility period. (1) The period of eligibility cannot
exceed 10 years . . . .
38 C.F.R. § 21.3046(a), (c) (2000). The above-quoted portion of § 21.3046 has not been amended
during the course of the adjudication of this claim.
C. BVA Determination of Appellant's DEA-Eligibility Period
The Board denied the appellant's DEA application because it determined that her eligibility
for DEA had expired before she began attending classes in August 1994. The Board reasoned as
follows:
Controlling law provides that a spouse of a veteran who has a total disability
permanent in nature resulting from a service-connected disability is eligible to
receive [DEA]. 38 U.S.C. § 3501(a)(1)(D). This eligibility, however, is limited to
a ten-year period following the date on which the VA first finds the spouse from
whom eligibility is derived has a service-connected total disability permanent in
nature. 38 U.S.C. § 3512(b)(1)(A); 38 C.F.R. § 21.3046(c)(1).
....
In this case, the RO determined by a July 1983 rating decision that the veteran's
dependents were entitled to [c]hapter 35 benefits. . . . In accordance with applicable
law, therefore, the appellant's [c]hapter 35 eligibility date was August 22, 1983. As
the appellant may not be afforded [DEA] beyond ten years after the eligibility date,
the delimiting date occurred on or about August 22, 1993. 38 U.S.C.
§ 3512(b)(1)(A); 38 C.F.R. § 21.3046(c)(1).
R. at 4 (emphasis added).
1. Date of Termination of DEA-Eligibility Period. The Board concluded that the appellant's
DEA eligibility period terminated "on or about August 22, 1993." R. at 4. Although a Board
determination of the proper effective date of a particular VA benefit is a finding of fact, see, e.g.,
Hanson v. Brown, 9 Vet.App. 29, 32 (1996), in this case the Board's determination was supported
exclusively by citation to 38 U.S.C. § 3512(b)(1)(A) and 38 C.F.R. § 21.3046(c)(1), regarding the
effective dates of DEA eligibility (R. at 4). Neither of those provisions has yet been examined by
this Court in this context; thus, the Court is faced with a question of law -- one of statutory
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interpretation -- that "is to be made by the Court de novo." Trilles v. West, 13 Vet.App. 314, 321
(2000) (en banc) (citing Butts v. Brown, 5 Vet.App. 532, 539 (1993) (en banc)).
The first question to examine is whether section 3512(b)(1)(A) supports the Board's position
that the appellant was not eligible for DEA for classes begun in August 1994. "The starting point
in interpreting a statute is examining the language itself, for 'if the intent of Congress is clear, that
is the end of the matter.'" Trilles, supra (quoting Cacatian v. West, 12 Vet.App. 373, 376 (1999)).
"The plain meaning of the statute is found in examining the specific language at issue and the
statute's overall structure." Ibid.
The statute lists three dates "beyond 10 years after whichever . . . last occurs" no DEA may
be provided. 38 U.S.C. § 3512(b)(1). The first of those three dates is "[t]he date on which the
Secretary first finds the spouse from whom eligibility is derived has a service-connected total
disability permanent in nature." 38 U.S.C. § 3512(b)(1)(A). According to the ROA, the RO made
such a finding in June 1980 (R. at 27-28) and then revisited that finding in July 1983 (R. at 34). The
Board determined that July 1983 was the date that the Secretary first found, in accordance with
subsection (b)(1)(A), that "the veteran's dependents were entitled to [c]hapter 35 benefits" (R. at 4),
and the parties agree on the use of that date as the date of the initial RO determination of DEA
eligibility. Secretary's July 5, 2000, Supplemental Mem. at 3; Appellant's Mem. at 7. There is a
plausible basis in the record for that BVA determination, that is, the July 1983 RO decision (R. at
34), and the Court will thus not question that finding of fact. See Gilbert v. Derwinski, 1 Vet.App.
49, 53 (1990) ("if there is a