Citation Nr: 0812286 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 05-38 978A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an extension of the ending date for the award of educational assistance benefits under 38 U.S.C. Chapter 30 beyond June 18, 2005. ATTORNEY FOR THE BOARD Simone C. Krembs, Associate Counsel INTRODUCTION The veteran served on active duty from June 1991 to June 1995. This matter comes before the Board of Veterans' Appeals (Board) from a July 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the veteran's claim of entitlement to an extension of the ending date for the award of educational assistance benefits under 38 U.S.C. Chapter 30 beyond June 18, 2005. FINDINGS OF FACT 1. The veteran served on active duty from June 18, 1991, to June 17, 1995; it is neither claimed nor shown that she had additional active duty after that date. 2. Ten years from the date of the veteran's discharge from active service was June 18, 2005; therefore, the veteran's basic delimiting period for receiving Chapter 30 educational benefits expired on June 18, 2005. 3. For the period from May 20, 2005, to July 1, 2005, the veteran was enrolled in an externship for certification as a medical assistant at Apollo College in Portland, Oregon. CONCLUSION OF LAW The criteria for an extension of the appellant's delimiting date for educational assistance benefits to July 1, 2005 under 38 U.S.C. Chapter 30, have been met. 38 U.S.C.A. §§ 3501, 3512 (West 2002); 38 C.F.R. §§ 3.102, 21.3021, 21.3044, 21.3046, 21.3047 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Extension of Delimiting Date for Educational Assistance Benefits Chapter 30 of Title 38, United States Code (also known as the All-Volunteer Force Educational Assistance Program) allows for veteran educational assistance if the veteran first entered on active duty as a member of the Armed Forces after June 30, 1985, or was eligible for an educational assistance allowance under Chapter 34 as of December 31, 1989. 38 U.S.C.A. § 3011(a)(1) (West 2002); 38 C.F.R. § 21.7040 (2007). The educational assistance or supplemental educational assistance is available for a period of 10 years from the later of the date of the veteran's last discharge or the date of release from a period of active duty of 90 days or more of continuous service. 38 C.F.R. § 21.7050(a). For individuals who are in receipt of benefits under Chapter 30, where the educational institution is regularly operated on the quarter or semester system and the veteran exhausts his entitlement under Chapter 30 during the quarter or semester, the discontinuance date shall be the last day of the quarter or semester in which such entitlement is exhausted. 38 C.F.R. § 21.7135(s)(2)(i) (2007). Where the educational institution is not regularly operated on the quarter or semester system and the veteran exhausts entitlement under Chapter 30 after more than half of the course at issue is completed, then the discontinuance date shall be the earlier of the following: (i) the last day of the course; or (ii) 12 weeks from the day that entitlement is exhausted. 38 C.F.R. § 21.7135(s)(2)(ii) (2007). However, if the veteran exhausts entitlement under Chapter 30 before completing the major portion of the course, the discontinuance date will be the date that entitlement is exhausted. 38 U.S.C.A. § 3031(f)(2) (West 2002); 38 C.F.R. § 21.7135(s)(3) (2007). The delimiting period of eligibility for Chapter 30 benefits may be extended if the veteran was prevented from initiating or completing the chosen program of education within the otherwise applicable eligibility period because of a physical or mental disability that did not result from his willful misconduct. It must be clearly established by medical evidence that such a program of education was medically infeasible. A veteran who is disabled for a period of 30 days or less will not be considered to have been prevented from initiating or completing a chosen program unless the evidence establishes that the veteran was prevented from enrolling or reenrolling in the chosen program or was forced to discontinue attendance, because of the short disability. 38 U.S.C.A. § 3031(d); 38 C.F.R. § 21.7051(a). The veteran was discharged from active service on June 17, 1995. Although the record reflects that she served additional periods of active duty for training following her discharge from service, it is neither claimed nor shown that she had additional active duty after June 17, 1995. Ten years from the date of the veteran's discharge from active service was June 18, 2005. Therefore, the veteran's basic delimiting period for receiving Chapter 30 educational benefits expired on June 18, 2005. To warrant an extension of the period of eligibility, it must either be shown that the veteran was enrolled in a course operated on a quarter or semester program, or in a course which was more than half-way completed at the time of the expiration of her entitlement to educational assistance benefits, or medical evidence must clearly show that during the claimed period of disability pursuit of a program of education was not medically feasible. The record reflects that at the time her educational assistance benefits expired the veteran was enrolled in an educational program at Apollo College in Portland, Oregon for certification as a medical assistant. Specifically, at the time her entitlement to benefits expired, she was participating in an externship that was scheduled to end July 1, 2005. The veteran had been enrolled in the externship since May 2005. Because the veteran was enrolled in a course not regularly operated on the quarter or semester system and exhausted her entitlement under Chapter 30 after more than half of the course at issue was completed, the proper discontinuance date is the last day of the course. 38 C.F.R. § 21.7135(s)(2)(ii) (2007). Accordingly, the Board finds that the veteran is entitled to an extension of the delimiting date for educational assistance benefits to July 1, 2005. With regard to the veteran's contention that the proper delimiting date was July 12, 2005, as the externship did not end until that date, the Board finds that this argument is of negligible weight, as official certification from the school shows that she was enrolled through July 1, 2005, but no longer. Accordingly, there is no legal entitlement to an extension of the delimiting date past July 1, 2005. Duties to Notify and Assist The Board has considered whether the Veterans Claims Assistance Act of 2000 and its provisions regarding duties to notify and assist claimants are applicable in this case. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). However, there are some claims to which those duties do not apply. Livesay v. Principi, 15 Vet. App. 165 (2001). Those duties to notify and assist apply only to claims under 38 U.S.C. Chapter 51. Sims v. Nicholson, 19 Vet App 453 (2006). This case involves benefits claimed under 38 U.S.C. Chapter 30 rather than pursuant to 38 U.S.C. Chapter 51. Consequently, the Board is not required to address any efforts to comply with the duties to notify and assist with respect to this issue. ORDER An extension of the veteran's delimiting date to July 1, 2005, for educational assistance benefits under 38 U.S.C. Chapter 30, is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs