holding that, because authority to grant equitable relief under section 503 is discretionary with Secretary, that authority is not appropriate ground for Court to use as basis for remand to Board
How later courts described this case
- holding that, because authority to grant equitable relief under section 503 is discretionary with Secretary, that authority is not appropriate ground for Court to use as basis for remand to Board
- nothing in statutes, regulations, or case law indicates that widow’s claim for DIC should be construed as informal claim for DEA benefits for child
- because authority to grant equitable relief under section 503 is discretionary with Secretary, that authority is not appropriate ground for Court to use as basis for remand to Board
- “only effect section 5113(a) has is simply to provide that, to the extent feasible, the same effective date template governs education[ ] benefits as governs awards of compensation, DIC, and pension”
Written by the judges who cited it.
The opinion
KRAMER, Judge,
concurring:
I concur in the result because I believe that 38 U.S.C. § 5110 (a), which limits the effective date to a date not earlier than the receipt of application, governs the disposition here. Because the appellant’s application was received in March 1991, he cannot be eligible for the cost of.education prior to that date.
The majority attempts to distinguish the facts in this case from those in Bernier v. Brown, 7 Vet.App. 434 (1995), in which the Court held that because of the application of 38 U.S.C. § 5113 (a), the appellant was entitled to retroactive benefits which predated the date of application. Section 5113(a), title 38, United States Code, provides that the “effective dates relating to awards under chapters 30, 31, 32, 34, and 35 of this title or chapter 106 of title 10 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation.” Here, the majority quotes Bernier with approval, in essence, for the proposition that if an application for educational benefits is filed after the filing of a claim for service connection which is ultimately granted, it is “feasible” and therefore mandatory that the effective date for education benefits be the date of filing of the claim for service connection. Application of that rule to this case would require an award of retroactive benefits to this appellant. The majority attempts to distinguish this case from Bernier by suggesting, however, that here an earlier claim for educational benefits had never been filed. However, in Bernier the earlier claim was for a different educational benefit than that which was awarded retroactively. Even more important, what was dispositive in Ber-nier, as quoted by the majority, was not an earlier claim for educational benefits, but an earlier claim for service connection. Bernier, 7 Vet.App. at 438 . “[Djelay was a result of VA’s belated grant of his claim for service connection.” Ibid. In this ease, a claim for service connection had been filed long before the appellant received the education for which he now seeks reimbursement. That claim was, in essence, granted when the appellant’s mother was awarded DIC, an award which postdated the appellant’s education and shortly after which, the appellant applied for educational benefits. Bernier made clear that where it is impossible to file for a benefit because a precondition of that benefit (i.e. service connection) had not been met, the provisions of 38 U.S.C. § 5110 (a) are not applicable, at least where the appellant filed for the benefit soon after an award of service connection, the situation both here and in Bernier .
The lack of distinction between Bernier and this ease notwithstanding, I concur because I believe Bernier was wrongly decided because of its misconstruction of 38 U.S.C. § 5113 (a). Bernier construed this section so as. to tie an effective date for an educational benefit to the effective date of an award of service connection. However, section 5113(a) is generic, not individualized to the relationship between service connection and educational benefits in a particular case. Section 5113(a) speaks in the plural to provide that “effective dates” for educational benefits “to the extent feasible, correspond to effective dates relating to awards of disability compensation.” Section 5110(a), title 38, United States Code, deals with generic effective dates for compensation, DIC, and pension. The only effect section 5113(a) has is simply to provide that, to the extent feasible, the same effective date template governs ed- ’ ucational benefits as governs awards of com *513 pensation, DIC, and pension. This construction is supported by the legislative history. 1957 U.S.C.C.A.N. 1245, 1253. (Mandatory application of compensation effective date provision to educational benefits not required where circumstances dictate some variance is needed.) In other words, the effect of section 5113(a) is to provide that the effective date for educational benefits is to be determined by using, to the extent feasible, the same rules as those provided for in section 5110(a). Contrary to the majority’s and Ber-nier’s view, section 5113(a) does not provide that the effective date for educational benefits is to be determined by the use of another date, i.e. the date of service connection. Thus, the effective date of the appellant’s educational benefit is determined by section 5110(a) and that in turn provides that the effective date cannot be earlier than the date of receipt of application.