Citation Nr: 0810603 Decision Date: 03/31/08 Archive Date: 04/09/08 DOCKET NO. 96-35 517 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an extension of the appellant's delimiting date beyond September 1995 for eligibility for educational assistance benefits under Chapter 35, Title 38, United States Code. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Parker, Counsel INTRODUCTION The appellant is the surviving spouse of a veteran who had active military service from April 1943 to April 1949. He died in June 1982. This matter comes before the Board of Veterans' Appeals (Board) from a November 1994 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the appellant's claim seeking entitlement to an extension of the delimiting date beyond September 1995 for Chapter 35 educational benefits. This case was remanded in July 1998 for issuance of a supplemental statement of the case that included regulations pertaining to extension of delimiting date once the delimiting date has already been extended. A supplemental statement of the case was issued in June 2007, and the case was returned to the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required. REMAND The appellant contends, in essence, that she is entitled to an extension of the delimiting date of her eligibility for Chapter 35 educational benefits. Specifically, she asserts that, although she was previously granted a two-year extension of the delimiting date, she had an illness during that entire two-year period. Review of the appellant's file shows that she was originally granted entitlement to Chapter 35 educational benefits in August 1969, based on her status as a spouse of a veteran with a total and permanent disability; the delimiting date for her eligibility was December 1, 1976. After the appellant used all but 5 1/4 months of entitlement, said entitlement was discontinued on March 14, 1974, due to the appellant's termination of attendance. In December 1982, the appellant submitted a claim seeking entitlement to Chapter 35 educational benefits based on her status as a surviving spouse of the veteran who, according to the claim, had died on June 30, 1982. The appellant was granted said entitlement by the RO; a June 30, 1992 delimiting date was assigned. The appellant was subsequently granted an extension of the June 30, 1992 delimiting date pursuant to a September 1993 RO decision. The RO determined that a two-year extension was warranted due to a traumatic experience that the appellant had endured. Consequently, entitlement to Chapter 35 benefits was resumed on September 1993 with a delimiting date of September 1995. The current appeal arises from a November 1994 request by the appellant for another extension of the delimiting date for her Chapter 35 educational benefits eligibility. In the request, she asserts that she was ill for the duration of the first extension of eligibility and, thus, was not able to use her remaining entitlement. In a November 1994 decision, the RO denied the appellant's request for another extension of the delimiting date for Chapter 35 benefits. It held that an extension was previously granted and that, as a result, the delimiting date could "not be extended further because of either the recurrence of disability or the onset of a new disability when such recurrence or onset is after the claimant's basic delimiting date." In June 1998, the Board remanded this case to the RO for issuance of a supplemental statement of the case that included regulations pertaining to extension of delimiting date once the delimiting date has already been extended. Pursuant to the June 1998 remand, the RO was to provide the laws or regulations upon which the RO relied when determining that another extension of delimiting date cannot be granted due to the recurrence of disability or the onset of a new disability. A supplemental statement of the case was issued in June 2007, and the case was returned to the Board. Unfortunately, only an incomplete educational folder arrived to the Board, and various documents referenced in the June 1998 Board remand and the June 2007 supplemental statement of the case are not now before the Board. The educational folder returned to the Board is not indicated to be a rebuilt folder, yet it is incomplete. The June 1998 remand references documents that are no longer a part of the appellant's education folder that is before the Board. For example, the June 1998 remand and June 2007 supplemental statement of the case reference an October 1994 letter from J. Noy, M.D., wherein it was indicated that the appellant had emergency surgery for a large bowel obstruction secondary to a colon tumor in November 1993, that she was to have chemotherapy treatments until January 1995, and that she would be able to resume her education on or about July 1995. The current educational file also does not include any of the procedural documents, including all of the documents and adjudications prior to the 1994 claim, the appellant's November 1994 request for extension of delimiting date, the November 1994 decision denying another extension of delimiting date, the notice of disagreement, the statement of the case, and the substantive appeal. For this reason, notwithstanding the lengthy period of appeal, another remand is necessary to obtain the evidence needed to make a decision, including the evidence that is indicated to exist but is no longer a part of the appellant's current education file. In addition, upon remand, the RO should clarify whether the appellant has a representative. The current partial education file does not include a power of attorney form reflecting appointment of a representative or service organization as representative. The VACOLS data reflects that the appellant does not have a representative or power of attorney; however, the June 2007 supplemental statement of the case copied Disabled American Veterans (DAV) service organization as the representative. The appellant's August 2007 Statement in Support of Claim does not refer to representation. The November 2007 Certification of Appeal (VA Form 8), likewise, did not indicate whether the appellant was or was not represented. A November 2007 letter from the RO to the appellant again copied DAV as the representative. As the record is inconsistent and unclear of the question of representation, clarification is needed. In light of the above, the Board finds that this case is not yet ready for appellate review. Accordingly, this case is REMANDED to the RO for the following: 1. Clarify whether the appellant has appointed a representative, specifically DAV. Include any power of attorney or written appointment of representation in the claims file. 2. Obtain the rest of the appellant's educational file and associate it with the partial educational file being remanded. Obtain the veteran's claims file, and associate the veteran's claims file with the appellant's current claim for extension of delimiting date for educational assistance. 3. Thereafter, in accordance with the current appellate procedures, the case should be returned to the Board for completion of appellate review. By this REMAND, the Board intimates no opinion, either factual or legal, as to the ultimate determination warranted in this case. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded, including any and all evidence and information in her possession that pertains to this claim for extension of delimiting date. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).