# Ozer v. Principi > United States Court of Appeals for Veterans Claims · February 6, 2001 · 14 Vet. App. 257 URL: https://www.frixlaw.com/law-library/cases/816745 ## Case - **Full name:** Catherine A. OZER, Appellant, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Appellee - **Court:** United States Court of Appeals for Veterans Claims - **Decided:** February 6, 2001 - **Citations:** 14 Vet. App. 257; 2001 U.S. Vet. App. LEXIS 69; 2001 WL 96481 - **Precedential status:** Published - **Opinion:** Opinion - **Judges:** Holdaway, Ivers, Steinberg - **Cited by:** 11 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/816745 ## How later opinions describe it (automated extraction) - holding that § 21.3046(c) (2000) “cannot stand” because it “imposes a 10-year limitation ... that was not contained in or authorized by 38 U.S.C. § 3512, or any other provisions of title 38[, U.S.Code]” - holding 38 C.F.R § 211.3046(c) invalid as in contravention of 38 U.S.C. § 3512 ## Opinion text 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 2 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 3 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. 4 (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 5 (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 6 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