Citation Nr: 1761174
Decision Date: 12/29/17 Archive Date: 01/02/18

DOCKET NO. 12-17 546A ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia

THE ISSUE

Entitlement to an extension of the delimiting date for educational assistance benefits under Chapter 30, Title 38, United States Code, beyond May 11, 2008.

REPRESENTATION

Veteran represented by: Fernando V. Narvaez, Attorney

ATTORNEY FOR THE BOARD

P. Lopez, Associate Counsel

INTRODUCTION

The veteran served on active duty from December 1982 to October 1984, and May 1995 to May 1998.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran initially requested a Board hearing. See 07/10/2012, Form 9. Nevertheless, in November 2017, his attorney withdrew the hearing request. Consequently, the Veteran’s hearing request is considered withdrawn.

FINDING OF FACT

The evidence of record demonstrates that the Veteran was prevented from pursuing a program of education before the expiration of his use of benefits on May 11, 2008, because of a mental disability not the result of his own willful misconduct, but that he did not apply for an extension within one year after his expiration date or the last day he was prevented from pursuing such a program.

CONCLUSION OF LAW

The criteria for an extension of the 10-year delimiting date for education benefits under Chapter 30, Title 38, United States Code, are not met. 38 U.S.C.A. § 3031 (West 2014); 38 C.F.R. §§ 21.7050, 21.7051 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

VA regulations specific to education benefits identify the notice and assistance requirements. See 38 C.F.R. §§ 21.1031, 21.1032 (2017). Although no notice was provided in this case, the Board finds no additional development is required. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). In this regard, a June 2012 statement of the case informed the Veteran of the laws and regulations applicable to extensions of the delimiting period. Further, the Veteran and his attorney have submitted thoughtful arguments that exhibit an understanding of the evidence necessary to substantiate the Veteran’s claim. Similarly, all relevant evidence necessary for an equitable disposition of this appeal has been obtained.

The Board now turns to the procedural history of the case. On December 22, 2010, VA received an application for VA education benefits (under Chapters 30, 1606, and 1607) from the Veteran. Then, on December 30, 2010, VA issued a letter denying eligibility under Chapters 1606 and 1607. This letter stated that the Veteran’s service department notified VA that he did not have a 6-year contract and there was no official notice from the service department of qualification under 1607. Additionally, on the same date, VA also issued a certificate of eligibility under Chapter 30, with a delimiting date of May 12, 2008.

On February 23, 2012, the Veteran requested a “reinstatement of [his] educational benefits and to change [his] delimitation date.” See 02/23/2012, Education – General, at 4. In a letter dated in March 2, 2012, VA denied the Veteran’s request for an extension of his delimiting date. The Veteran appealed this determination via a statement from the Veteran’s attorney, received in April 16, 2012.

***

Eligibility requirements for Chapter 30 educational benefits are codified at 38 U.S.C. § 3011. Pursuant to this section, a veteran must complete three continuous years of active duty commencing after June 30, 1985, and receive an honorable discharge. 38 U.S.C. § 3011(a)(1)(A); 38 C.F.R. § 21.7042 (2017) (VA’s regulations concerning basic eligibility for chapter 30 educational assistance benefits). Except as otherwise provided, such benefits are to be used during a
10-year period beginning with the date of the veteran’s last discharge from service. 38 U.S.C. § 3031(a); 38 C.F.R. § 21.7050(a) (2017).

Here, the Veteran was last discharged from service in May 10, 1998. Accordingly, his delimiting period ended in May 11, 2008. The Veteran has acknowledged, and not challenged, this delimiting date; rather, he seeks an extension of it. See statement from the Veteran’s attorney, received in April 16, 2012. In support of his request for an extension, the Veteran has put forward two main arguments.

First, the Veteran contends that he was under a disability that prevented him from attending school prior to his delimiting date. In a statement received in April 16, 2012, the Veteran’s attorney asserted that the Veteran applied for Montgomery G.I. Bill (MGIB) educational benefits on or around December 2001, that he put a stop to his education plans after his son was diagnosed with cancer in February 2002, that he attended to his son’s illness from 2002 through 2003, that the Veteran was bitten just above the left knee by a spider in June 2003, that he developed vascular necrosis due to the spider bite, requiring intensive medical treatment and being assessed as unable to work (in September 2003, March 2004, and May 2004), that he was diagnosed with diabetes in January 2004, that shortly after his son’s death in August 2004 the Veteran developed severe depression, that in 2005 as a result of his physical and emotional limitations he was terminated from the USPS and his marriage ended in divorce, and that in 2006 the Veteran again applied for MGIB benefits but was informed at that time that he was not eligible. The Veteran submitted a June 2008 psycho-educational assessment from Dr. HB. Dr. HB found that the Veteran exhibited learning and processing disabilities. Based on the above, the Veteran’s attorney posits that the Veteran’s mental health impairments, compounded by his learning and processing disabilities, precluded him from successfully reentering school prior to the delimiting date. The Veteran’s attorney went on to indicate that the Veteran received vocational rehabilitation through
VA and that, in 2010, had finally made enough recovery to attempt to attend school again and, to that end, resubmitted his application for MGIB benefits.

Second, the Veteran asserts that he submitted a letter dated January 8, 2008, requesting reevaluation of his educational records, and that this letter should be construed as a request for his Chapter 30 educational benefits to be applied and/or extended. See substantive appeal received in July 10, 2012.

***

The period of eligibility for Chapter 30 educational benefits may be extended under the circumstances enumerated in section 3031. See, e.g., 38 U.S.C. § 3031(b) (change in nature of discharge), (c) (detention by a foreign government),
(d) (existence of physical or mental disability); 38 C.F.R. § 21.7050.

Section 3031(d) addresses the circumstances under which the Veteran seeks an extension- i.e., an extension based on his suffering from a physical or mental disability during the 10-year delimiting period. 38 U.S.C. § 3031(d).

Section 3031(d) was amended in 2011. Pub. L. 111-377, title II, § 201, 124 Stat. 4122 (Jan. 4, 2011). The current version of subsection (d), however, is not applicable here because it took effect on August 1, 2011, and “shall apply with respect to preventions and suspension of pursuit or programs of education that commence on or after that date.” Id. Here, as noted above, the Veteran has asserted that his disability commenced prior to August 1, 2011, in fact, as early as February 2002. See statement from the Veteran’s attorney, received in April 16, 2012.

Prior to August 1, 2011, section 3031(d) provided, in pertinent part:

(d) In the case of an individual eligible for educational assistance under this chapter-

(1) who was prevented from pursuing such individual’s chosen program of education before the expiration of the 10-year period for use of entitlement under this chapter otherwise applicable under this section because of a physical or mental disability which was not the result of the individual’s own willful misconduct, and

(2) who applies for an extension of such 10-year period within one year after (A) the last day of such period, or (B) the last day on which such individual was so prevented from pursuing such program, whichever is later,

such 10-year period shall not run with respect to such individual during the period of time that such individual was so prevented from pursuing such program and such 10-year period will again begin running on the first day following such individual’s recovery from such disability on which it is reasonably feasible, as determined under regulations which the Secretary shall prescribe, for such individual to initiate or resume pursuit of a program of education with educational assistance under this chapter.

38 U.S.C. § 3031(d)(1), (2) (2010).

VA regulations also identify the circumstances under which the period may be extended. Pursuant to 38 C.F.R. § 21.7051(a), the period of eligibility can be extended if the claimant “was prevented from initiating or completing the chosen program of education . . . because of physical or mental disability, that did not result from the veteran’s willful misconduct” and he or she “applies for an extension within the time specified in 38 C.F.R. § 21.1033(c).” 38 C.F.R. § 21.7051(a) (2010 and current).

Section 21.1033(c), in turn, provides that

VA must receive a claim for an extended period of eligibility . . . by the later of the following dates:

(1) One year from the date on which the spouse’s, surviving spouse’s, veteran’s, or reservist’s original period of eligibility ended; or

(2) One year from the date on which the spouse’s, surviving spouse’s, veteran’s, or reservist’s physical or mental disability no longer prevented him or her from beginning or resuming a chosen program of education.

38 C.F.R. § 21.1033(c) (2017).

***

As mentioned, the Veteran’s attorney contends that he was precluded from successfully reentering school prior to the delimiting date due to mental disability. He further asserts that the Veteran achieved recovery from his disability in 2010. Unfortunately, the Board finds that the competent and probative evidence of record weighs against such a finding.

The record shows that, in August 1999, the Veteran applied for education benefits under VA’s Vocational Rehabilitation and Employment (Chapter 31 or VR&E) program. See 08/27/1999, Education – General. The Veteran was found entitled to such benefits. Nevertheless, per a February 2000 redevelopment counseling report, he requested that his file be put in interrupted status to pursue full-time work at the USPS. It was noted that the Veteran was uncertain if the position at the USPS would involve physical requirements that may cause difficulty with his service-connected disability, but he wanted to pursue the position in order to make the determination. See 06/16/2017, VR&E claims file (labeled as “Other” in VBMS), at 394.

The record further shows that, in August 2005, VA acknowledged receipt of an application for VR&E benefits from the Veteran. Id. at 347. In a letter dated May 15, 2006, VA informed the Veteran that entitlement to Chapter 31 benefits had been granted. Id. at 243. In July 2006, the Veteran was encouraged to contact a local community college regarding training programs. Id. at 232. The record reflects that the Veteran registered for studies at a community college around October 2006 and that, in December 2006, VA approved the Veteran to begin studies with VR&E benefits. Id. at 205 and 214. Significantly, a February 2007 special report of training indicates that the Veteran was in his first semester of training at a local community college for an associate degree in office administration, with an anticipated graduation date of August 2009. Id. at 201. Per the training report, the Veteran indicated that his classes were going well and he appeared to be highly motivated. Id. Documents from January 2008 indicate that the Veteran registered for courses outside his educational plan and that this generated some conflict; as a result, the Veteran requested the redevelopment of his educational plan from an A.A.S. degree to an A.S. or A.A. degree. Id. at 152, 171, and 174. Ultimately, in January 2011, VA proposed to declare that the Veteran was rehabilitated, as a resulted of having completed a BS degree in social work and having secured suitable employment in a position compatible with his abilities. Id. at 243 and 251 (06/16/17 – other).

The aforementioned evidence establishes that the Veteran initiated studies at a local community college around February 2007. From there, he went on to complete, in December 2010, a bachelor’s degree in social work. This evidence contradicts the Veteran’s assertion that his mental disability precluded him from successfully
re-entering school prior to the delimiting date and up to 2010. Rather, this evidence supports a finding that, by February 2007, the Veteran’s mental disability no longer prevented him from beginning or resuming a chosen program of education.

***

As mentioned, the Veteran applied for Chapter 30 benefits in December 2010. By then, his delimiting period had ended. Thus, his application is construed as a request for an extension of his delimiting period. Unfortunately, the Veteran’s request fails to meet the legal requirement for such an extension. Significantly, the Veteran did not request an extension within one year of the date on which the original period of eligibility ended or within one year from the date on which his mental disability no longer prevented him from beginning or resuming a chosen program of education, whichever is the latest. As discussed, his original period of eligibility ended in May 2008 and, by February 2007, the Board found above that his mental disability no longer prevented him from studying. Since May 2008 is the latest of these two dates, the Veteran was required to have submitted his request for an extension before May 2009. As the Veteran did not submit it prior to that date, the Board has no choice but to deny his request for an extension of the delimiting date.

The Veteran has indicated that he applied for MGIB benefits at different times prior to the end of the delimiting period. In this regard, he has stated that he applied for eligibility around December 2001. See statement from the Veteran, received February 23, 2012 (labeled as “Education – General” in VBMS); statement from the Veteran’s attorney, received April 16, 2012. He has stated that he again applied for MGIB benefits in 2006, but was told that he was not eligible. In April 2012, the Veteran submitted an application for VA education benefits dated January 11, 2006, but with no date stamp from that period in the designated box or elsewhere (it is stamped as being scanned in February 2015 and another stamp from the Atlanta RO dated in April 2012). The Board has carefully reviewed the record and found no evidence of such claims, either from 2001 or 2006. Rather, the evidence shows that the Veteran applied for, and was granted, educational benefits under Chapter 31, for vocational rehabilitation, in 1999, that he put his education plans on hold to pursue a job at the USPS, and that he reapplied for, was granted, and benefitted from VR&E benefits from 2007 to 2010.

The Veteran also contends that a letter dated January 8, 2008, constructively serves as a request for his MGIB benefits to be applied and/or extended. The Board finds no merit in this argument. The referred letter is part of the Veteran’s VR&E claims file. In the letter, the Veteran requests that VA re-evaluate his records and redevelop his educational plan from an A.A.S. degree to an A.S. or A.A. degree. This request was made in the context of the Veteran’s vocational rehabilitation program. As such, the Board does not find it has the proper content or context to be an request for an application or extension of MGIB benefits.

A veteran must make an election of benefits among the programs of education administered by VA for which he or she may be eligible. A veteran who has basic entitlement to rehabilitation under Chapter 31 and is also eligible for assistance under any of the other education programs administered by VA must make an election of benefits between Chapter 31 and any other VA program of education for he or she may be eligible. The Veteran may reelect at any time if he or she is otherwise eligible. 38 C.F.R. § 21.21(a).

Here, the Veteran started to receive VR&E benefits in 2007. In January 2008, due to a discrepancy regarding his preferred choice of courses, he requested that his educational plan be redeveloped toward a different degree. There is no indication that the Veteran requested a switch from VR&E to MGIB benefits, an option that was available to him prior to the delimiting period. Rather, he chose to continue using VR&E benefits for his educational program, which he completed in December 2010. It was then that he submitted an application for Chapter 30 educational benefits for purposes of pursuing a master’s degree. This application was denied and is the basis of the present appeal. Although the Veteran asserts that he twice applied for MGIB benefits prior to December 2010, such actions are not documented in the claims file. More significantly, the record indicates that, from 2007 to 2010, the Veteran fully benefitted from VR&E educational benefits. In this regard, a March 2011 letter from VA to the Veteran congratulated him on completing his vocational rehabilitation program and successfully maintaining employment for at least 60 days as a contract representative with the Social Security Administration.

In sum, the Board concedes that the Veteran was prevented from pursuing a program of education before the expiration of his use of benefits in May 11, 2008, because of a mental disability not the result of his own willful misconduct, but that he did not apply for an extension within one year after his expiration date or within one year of the last day he was prevented from pursuing such a program. The evidence shows that the Veteran was able to begin an educational program in early 2007 and that he went to complete a bachelor’s degree in December 2010.
More specifically, the evidence shows that by February 2007, prior to the termination of his delimiting period, the Veteran was no longer prevented from going to school due to his mental disability. His delimiting period eventually ended in May 11, 2008. There is no indication that he filed a request for an extension of his Chapter 30 benefits delimiting date within a year of May 11, 2008. Therefore, the Board must deny the Veteran’s request for an extension of the delimiting date.

ORDER

An extension to the 10-year delimiting date for education benefits under Chapter 30, Title 38, United States Code, is denied.

____________________________________________
Paul Sorisio
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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