PROBLEM

VA currently illegally strips half of Chapter 35 (Survivors' and Dependents' Educational Assistance) benefits from children of dual married or divorced (sometimes deceased) 100% service connected veteran parents, and takes compensation on behalf of the college student away from any 30-90% service connected veteran married to one rated 100% (or deceased) under whose eligibility a child student has elected Chapter 35, without a basis in U.S. law or valid federal regulation.

Rough calculations based on numbers from Virginia, the state with the highest ratio of female to male veterans of all 50 in the nation, at a loss of over $55,000 per recipient indicate that in the past nearly 18 years over $1,000,000,000 in Chapter 35 monetary benefits has been wrongly denied to child college and other post-secondary students across the country. The additional direct financial harm to veterans themselves at the tip of the iceberg must exceed $25,000,000 by now. For each student a VA employee at the toll-free GI Bill number or a VSO currently dissuades from attempting to apply through the eligibility of two or more parents, there could be many more that don’t even call or come into an office, given the wide spread false "double dipping" narrative veterans have heard for decades from one source or another.

SOLUTION
The good news is NO legislation is needed, though Disabled American Veterans (DAV) passed three resolutions at its national convention in August 2022 (reauthorized several times since) that may lead to it. A key one would eliminate the current statutory relinquishment of compensation on behalf of the student that a veteran experiences when a child elects Chapter 35. This offset is not required when a spouse elects Chapter 35 or when a veteran shares the transferrable GI Bill (Chapter 33) with any family member, and has led to broad overreach and misapplication of law. Veterans and post-secondary (usually college) child students need to force VA to follow the intent of Congress and binding federal law with support from our elected representatives, along with possibly initiating class action litigation before the United States Court of Appeals for Veterans Claims (CAVC) in Washington DC. That crucial tool has only been available since 2020.
 

HISTORY
Between 1992—2001 one VA Regional Office allowed four children of two 100% service-connected married veterans to receive two half sets of Chapter 35 benefits, really only helpful if pursuing a two year associate’s degree.

On January 25, 2002, in the immediate wake of 9-11, VA curtailed that practice and cut costs/efforts to itself by issuing a general counsel opinion not properly published in the Federal Register disallowing concurrent benefits in any fashion to the children of two 100% married veterans, while those of two veterans in the “same parental line”—for example, a biological father and a stepfather—have always been allowed two full sets, though never concurrently, thus only helpful if moving on to graduate school by age 26.

On October 8, 2008, a three judge panel of the CAVC threw out that general counsel opinion and issued a binding precedential ruling (never appealed) in a key legal case called Osman v. Peake, telling VA it has to allow two full sets of Chapter 35 benefits to the child of two 100% service connected veteran parents, either concurrently or consecutively as chosen by the student, given that each veteran earned them as separate individuals. Judge Hagel, responsible for the decision, can be heard on audio a little over an hour into oral argument, asking VA's attorney why the panel would want to discount the service of the second veteran parent; it clearly did the opposite in its well reasoned decision.

However, VA willfully chose not to follow that precedential CAVC ruling in good faith by slipping contrary language into an internal education manual known as the M22-4 that its employees have now used to deny benefits in line with Osman for nearly two decades, and have even misinterpreted to further take compensation away from lesser service connected veteran parents, contrary to law and equity. Language in the VA M21-1 claim adjudication manual and in correspondence to veterans is not legal if it does not at a minimum reflect the language in the U.S. Code and 38 CFR despite what VA employees all too often think and repeat, especially when veterans and students call the VA toll-free GI Bill number.

ACTION
Please read the sections from the current, never appealed, precedential Osman CAVC decision along with the VA M22-4 manual below, and if the uncaring illegal nature of VA’s response stuns you too, join the good fight on behalf of America’s most injured and wounded veterans/service members, some already deceased, and their children pursuing an education. VA must follow the intent of Congress and settled current federal case law immediately to be the entity President Lincoln envisioned!  Retroactive back awards are possible if rare, and necessary to rectify the deliberate harm done at the expense of mostly teenagers who do not know to seek representation from VSO's or attorneys who can later bill the VA after winning using the Equal Access to Justice Act (EAJA). We have pro bono (no cost) legal assistance available for those denied and in the appeals process enroute to the United States Court of Appeals for Veterans Claims after losing within the VA's legal system ("BVA"); help spread the word and steer appellants our way ASAP. Much like justice delayed is justice denied, withholding earned educational and compensation benefits year after year amounts to lesser life outcomes than Congress and our fellow Americans intend--paid for through taxes--after service connected death and serious injury resulting in VA ratings of 100%.

Pertinent language from the binding case of Osman v. Peake establishing federal law reads as follows:
Before KASOLD, HAGEL, and DAVIS, Judges. HAGEL, Judge: The appellant, Brian M. Osman, M.D., who is self-represented, is the son of two permanently and totally disabled veterans. He appeals a June 22, 2005, decision of the Board of Veterans' Appeals (Board) that denied entitlement to Dependents' Educational Assistance benefits under Chapter 35 of Title 38, United States Code, based on the service of his mother because he had previously been granted such benefits on the basis of the service of his father. The parties each filed briefs, amicus curiae has filed a brief in support of the appellant, and both Dr. Osman and amicus curiae presented oral argument. For the reasons that follow, the Court will reverse the Board's decision with respect to Dr. Osman's eligibility for additional Dependents' Educational Assistance benefits and remand the matter to award benefits consistent with this decision. (page 1 of Osman legal decision)

CONCLUSION

Accordingly, the June 22, 2005, Board decision is reversed and the matter is remanded. The Board will grant Dr. Osman's Dependents' Educational Assistance benefits as an eligible person under his mother's permanent and total service-connected disability as of the original date such assistance was requested. (page 12 of Osman legal decision)

Yet this is how VA dealt with losing the case 3-0, paying OFF Brian Osman with another full 45 month set of Chapter 35 benefits for a total of 90 to make him go away, but refusing to follow the key aspects of the ruling for any other child student as the judges clearly had intended:
3.04 DUAL ELIGIBILITY FOR CHAPTER 35 CHILDREN. On October 8, 2008, the United States Court of Appeals for Veterans Claims issued a ruling allowing a person eligible by means of more than one parent with a rating of Permanent and Total (P&T) disabled or who died due to a service connected disability to receive concurrent or consecutive payment of Chapter 35 benefits. Although a dependent child with eligibility from multiple parents may elect to receive concurrent benefits (i.e. twice the full-time monthly rate), the child is still limited to a maximum of 45 or 36 months combined depending upon when Chapter 35 was first used. When concurrent benefits are paid, one month of entitlement must be deducted from each entitlement source. A Veterans Claims Examiner (VCE) must manually limit entitlement used on both education records due to current system limitations. (Emphasis added; VA appears to have arrived in court on July 23, 2008, with a last minute "chart" calling for a faster depletion of one set of benefits even if both parents provide eligibility, and instead of shredding it after losing the case, must have incorporated it in the M22-4 education manual as if it had won which its employees were then forced to follow, wrong or not; see beginning and end of transcript available here.)

VA’s illegal and capricious response to the ruling from the United States Court of Appeals for Veterans Claims cannot be allowed to continue; the Great Recession is long behind us and there are better ways to fund the Post 9-11 GI Bill other than at the expense of veterans rated 30-100% by the VA and their children seeking a college or other post-secondary education. Following this ruling is NOT optional on VA’s part, nor is the Harry W. Colmery Act of 2017 establishing the Forever GI Bill a valid excuse for sidestepping it, as the statutory changes of 2006 and 2007 limiting spouses to one set of Chapter 35 weren't either from 2008 to mid-2024 until VA radically shifted gears in late 2024, suddenly citing the Colmery Act in six BVA cases since then. US law is chronological, and the panel of CAVC judges knew about those prior changes in 2008 as can be heard on audio from July 23, 2008 at oral argument, while VA failed to appeal Osman v. Peake by early 2009 as required if it objected to the outcome.

Strangely, two veterans have won the ability since 2008 to keep awarded Montgomery GI Bill (Chapter 30) benefits when found by VA to be using state tuition waiver programs at the same time, in nonprecedential but very illustrative cases where logical BVA judges actually understood Osman well. The second such case, where the veteran had effective representation from the American Legion, is included here. If Osman can work in a parallel lane for veterans, it should do so for child students in the on point cases Judges Hagel, Kasold and Davis had in mind nearly 18 years ago, ruling in their favor. Only one in about a hundred CAVC cases is precedential. There are 23 boxes of legal materials stored in the National Archives in Suitland, Maryland, on Osman v. Peake; this is a hugely significant decision VA is wrong to ignore and twist to its advantage, while the damage it does young Americans is unconscionable. Let's work together to fix this NOW.