            UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 98-57


CATHERINE A. OZER,                                            APPELLANT ,

       V.


TOGO D. WEST , JR.,
SECRETARY OF VETERANS AFFAIRS,                                APPELLEE.


                    Before HOLDAWAY, IVERS, and STEINBERG, Judges.

                                            ORDER

        The pro se appellant, the spouse of veteran Philip Ozer, appeals a September 16, 1997,
decision of the Board of Veterans' Appeals (BVA) that denied entitlement to dependent's educational
assistance (DEA) under chapter 35 of title 38, U.S. Code. Record (R.) at 3. The appellant has filed
an informal brief, and the Secretary has filed a motion for single-judge affirmance and, in response
to a June 3, 1998, Court order, the Secretary has filed a brief regarding the application of 38 U.S.C.
§ 3512(b) to the facts of this case.

      Section 3512 of title 38, U.S. Code, has the following provisions as to periods of eligibility
for DEA:

             (b)(1) No person made eligible by section 3501(a)(1)(B) or (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.

                      (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.

               (2) Notwithstanding the provisions of paragraph (1) of this subsection, in the
       case of any eligible person (as defined in section 3501(a)(1)(B), (C), or (D) of this
       title) who was prevented from initiating or completing such person's chosen program
       of education within such period because of a physical or mental disability which was
       not the result of such person's own willfull [sic] misconduct, such person shall, upon
       application made within one year after (A) the last date of the delimiting period
       otherwise applicable under this section, (B) the termination of the period of mental
       or physical disability, or (C) October 1, 1980, whichever is the latest, be granted an
       extension of the applicable delimiting period for such length of time as the Secretary
       determines, from the evidence, that such person was so prevented from initiating or
       completing such program of education. When an extension of the applicable
       delimiting period is granted under the exception in the preceding sentence, the
       delimiting period will again begin running on the first day following such eligible
       person's recovery from such disability on which it is reasonably feasible, as
       determined in accordance with regulations which the Secretary shall prescribe, for
       such eligible person to initiate or resume pursuit of a program of education with
       educational assistance under this chapter.

               (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.

               ....

               (d) The term "first finds" as used in this section means the effective date of
       the rating or date of notification to the veteran from whom eligibility is derived
       establishing a service-connected total disability permanent in nature whichever is
       more advantageous to the eligible person.

38 U.S.C. § 3512(b), (d). Section 3501(a)(1) of title 38, U.S. Code, provides the following pertinent
definitions:

       (a) For the purposes of this chapter and chapter 36 of this title--

       (1) The term "eligible person" means--


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                ....
                (B) the surviving spouse of any person who died of a service-connected
        disability, [or]

                ....

                 (D) the spouse of any person who has a total disability permanent in nature
        resulting from a service-connected disability, or the surviving spouse of a veteran
        who died while a disability so evaluated was in existence, arising out of active
        military, naval, or air service after the beginning of the Spanish-American War, but
        only if such service did not terminate under dishonorable conditions. The standards
        and criteria for determining whether or not a disability arising out of such service is
        service connected shall be those applicable under chapter 11 of this title.

38 U.S.C. § 3501(a)(1)(B), (D).

        Regarding the application of section 3512 to the facts of this case, the Court notes that section
3512(b)(1) provides: "No person . . . may be afforded educational assistance under this chapter
beyond 10 years after whichever of [the three events listed in subparagraphs (A), (B), or (C)] . . . last
occurs". 38 U.S.C. § 3512(b)(1) (emphasis added). In this case, the event listed in subparagraph (A)
has occurred: VA has found (either in July 1983 or June 1980) that the veteran has a service-
connected total disability permanent in nature, and the veteran is still alive. Because the events listed
in subparagraphs (B) and (C) both involve the death of the veteran, in this case those events must
occur "after" the event listed in subparagraph (A). The Court also notes that section 3512(b)(3)
appears to provide that the appellant can "elect a date . . . to commence receiving" DEA, but does
not expressly establish a termination date. Similarly, subsection (b)(1) appears to create a ten-year
period "beyond" which no DEA may be afforded. Neither of these statutory provisions appears to
provide that DEA may be afforded only for a fixed ten-year period.

        In view of the foregoing and based on the Court's review of section 3512 in its entirety, as
well as the attendant Department of Veterans Affairs (VA) regulations cited by the Secretary in his
pleadings, the Court needs answers (with accompanying reasons) to the following additional
questions:

                1. Because it appears that there are two dates (June 1980 and July 1983, see
        R. at 28, 34)) on which it was established that the veteran was eligible for DEA, does
        section 3512(d) or any other authority permit the Secretary to use the later date in
        deciding when the veteran was "first found" to have a service-connected total
        disability permanent in nature?

               2. (a) Does section 3512(b)(3)(A) permit the appellant, with approval by the
        Secretary, to choose the date on which she may begin receiving DEA?



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               (b) If the Secretary approves the appellant's decision to elect a date on which
       she may begin receiving DEA, does the second sentence in section 3512(b)(3)(A)
       require the Secretary to start the running of the delimiting period from the date
       "elected" by the appellant?

               3.(a) For the purposes of section 3512(b)(3), when did the appellant become
       an eligible person -- in January 1988, when she first married the veteran (R. at 42),
       or on the date that VA first found that the veteran had a service-connected total
       disability permanent in nature?

                (b) If the latter, then do the dates set forth in 38 C.F.R. § 21.3046(a)(2)(ii)
       (1999) -- "(A) [t]he effective date of the [veteran's 100%] rating, or (B) [t]he date of
       notification [of that rating]" -- constitute a permissible restriction on the statutory
       options set forth in section 3512(b)(3), see Lee (Raymond) v. West, __ Vet.App. __,
       __, No. 98-726, slip op. at 8-9 (Mar. 14, 2000) (striking down VA regulation when
       "'statute was mandatory, leaving no room for . . . VA to impose additional restrictions
       on entitlement'")?

               4. What is the statutory basis and justification for the application of the
       different criteria in 38 C.F.R. § 21.3046(a)(2)(ii) or (iii) on the basis of whether "VA
       made a final determination of eligibility before [or after] October 28, 1986," and what
       was the rationale for establishing these different categories?

                5. What is the statutory basis and justification for the regulatory limitation of
       eligibility to a period of "10 years" that is contained in 38 C.F.R. § 21.3046(c)
       (1999)?

               6.(a) Does section 3512(b)(3)(B) permit the appellant to "elect" one date from
       section 3512(b)(1) (A), (B), or (C)?

               (b) If so, even though the necessary event for triggering section 3512(b)(1)(A)
       has already occurred, what prevents her from deferring her election of receipt of DEA
       until she is a surviving spouse, as provided for in section 3512(b)(1)(B) and (C)?

       To the extent that any pertinent legislative or regulatory history or opinions of the VA
General Counsel can be found that might assist the Court in understanding the answers to the above
questions, such material should be discussed in any memorandum filed pursuant to this order, and
copies of such materials should be appended to such memorandum.

       Upon consideration of the foregoing, it is

       ORDERED that, not later than 30 days after the date of this order, the Secretary file, and
serve on the appellant and any amici that may have indicated an intention to file a memorandum in


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response to this order, a supplemental memorandum addressing the questions set forth above. It is
further

       ORDERED that, not later than 30 days after service of the Secretary's supplemental
memorandum, the appellant may file, and, if so, shall serve on the Secretary, a memorandum
addressing the questions set forth above, including but not limited to responses to points made in the
Secretary's supplemental memorandum. It is further

       ORDERED that, not later than 30 days after the Secretary files his supplemental
memorandum, any interested individual or entity is invited to file a memorandum addressing the
questions set forth above, including but not limited to responses to points made in the Secretary's
supplemental memorandum. Any such interested individual or entity that intends to file such an
amicus memorandum is requested to notify the Clerk of the Court, not later than 5 days after the
Secretary files his supplemental memorandum, of such intention.

DATED:         May 4, 2000                            PER CURIAM.




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