Citation Nr: 0813628 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 02-14 956A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an extension of the delimiting date for the award of educational assistance benefits under Chapter 30, Title 38, United States Code. ATTORNEY FOR THE BOARD C. Ferguson, Associate Counsel INTRODUCTION The veteran had active service from February 1988 to August 1991. This matter returns to the Board of Veterans' Appeals (Board) following Remands issued in November 2003, July 2004, December 2005, and September 2006. This matter was originally on appeal from an August 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In August 2001, the RO granted the veteran an extension of his delimiting date for the period of August 8, 1997 to March 24, 1998, based on evidence of a left ankle injury that prevented him from working during that period. The delimiting date was extended to April 9, 2002. In November 2003 and July 2004, the Board remanded the case to the RO for further development. In a June 2005 rating decision, the RO granted the veteran an extension of his delimiting date for the periods of December 14, 1999 to March 22, 2000 and July 1, 2001 to October 1, 2001, based on evidence showing that his ankle and foot conditions prevented him from working or attending school during those periods. Consequently, his delimiting date was extended by five months and 28 days. The veteran continued his appeal. In December 2005, the Board remanded the case to the RO for further development related in part to actions not completed in the previous remand and in part to more recent developments (i.e., award of disability compensation for post-traumatic stress disorder (PTSD) in November 2004). Following certain actions, the case was returned to the Board. In September 2006, the Board again remanded the issue currently on appeal for further development and to ensure compliance with previous Remand orders. The case now returns to the Board following the completion of the directives outlined in the Board Remand. The Board observes that the veteran requested to be scheduled for a Board hearing to be held in Washington, DC in a May 2006 VA Form 9. However, the veteran later indicated in July 2006 correspondence that he would not be attending the hearing scheduled for later that month and did not want to reschedule the hearing. He further indicated that he wanted the Board to proceed with the adjudication of his claim. Thus, the veteran's hearing request has been withdrawn. FINDINGS OF FACT 1. The veteran has been notified of the evidence necessary to substantiate his claim, and all relevant evidence necessary for an equitable disposition of this appeal has been obtained, to the extent possible. 2. The veteran was granted an extension of his delimiting date for the period of August 8, 1997 to March 24, 1998 due to his ankle injury with delimiting date extended to April 9, 2002 as well as an extension of his delimiting date for the periods of December 14, 1999 to March 22, 2000 and July 1, 2001 to October 1, 2001 due to ankle and foot conditions with delimiting date extended by five months and 28 days. 3. It is not shown by medical evidence that a physical or mental disability prevented the veteran from initiating or completing an educational program for any additional periods during his basic chapter 30 delimiting period. CONCLUSION OF LAW The criteria for an extension of the delimiting date for the award of educational assistance benefits under Chapter 30, Title 38, United States Code have not been met. 38 U.S.C.A. § 3031 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 21.7050, 21.7051 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). But see Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. Apr. 5, 2006) (when VCAA notice follows the initial unfavorable AOJ decision, remand and subsequent RO actions may "essentially cure [] the error in the timing of notice"). VCAA notice should also apprise the veteran of the criteria for assigning disability ratings and for award of an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that the veteran was not provided with proper VCAA notice prior to the August 2001 rating decision. However, any defect with respect to the timing of the notice has been cured as the veteran was sent adequate VCAA notice following the November 2003 Board Remand and his claim was subsequently readjudicated, as will be explained in greater detail below. In undated correspondence issued pursuant to the November 2003 Board Remand, the RO advised the veteran of what the evidence must show for an extension of education benefits, thoroughly described the types of evidence that would support the veteran's claim, and asked him to submit the pertinent evidence within 30 days of the date of the letter. The RO also advised the veteran regarding what evidence it would obtain and make reasonable efforts to obtain on his behalf in support of his claim. Multiple follow-up VCAA notice letters were subsequently sent to the veteran and his claim was readjudicated, most recently in November 2007. The Board further notes that the RO provided the veteran with a copy of the rating decisions dated in August 2001, November 2004, June 2005, and June 2007, the August 2002 Statement of the Case (SOC), and the Supplemental Statements of the Case (SSOCs) dated in December 2004, July 2005, March 2006, and November 2007, which included a discussion of the facts of the claim, pertinent laws and regulations, notification of the basis of the decision, and a summary of the evidence considered to reach the decision. Therefore, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the veteran that any additional information or evidence is needed. Quartuccio, 16 Vet. App. at 187. To fulfill its statutory duty to assist, the RO obtained and the veteran otherwise sent the private and VA treatment records that the veteran identified as relevant to his claim, to the extent possible. The veteran's claims folder has also been associated with his education folder and the evidence therein has been considered with respect to the veteran's claim. The veteran has not made the RO or the Board aware of any other evidence relevant to this appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to the claim. Accordingly, the Board will proceed with appellate review. II. Analysis The veteran seeks entitlement to an extension of his delimiting date for the award of Chapter 30 educational assistance benefits. The law provides a ten-year period of eligibility during which an individual may use his entitlement to educational assistance benefits; that period begins on the date of the veteran's last discharge from active duty. 38 U.S.C.A. §§ 3031, 3033 (West 2002); 38 C.F.R. § 21.7142 (2007). In the present case, the record reflects that the veteran separated from active military service on August 22, 1991. There is no evidence of record to indicate that the veteran had any active duty after August 22, 1991. Thus, the original delimiting date of August 23, 2001 was properly assigned. An extension of the applicable delimiting period shall be granted when it is determined that 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 the veteran's willful misconduct. It must be clearly established by medical evidence that such a program of education was medically infeasible. VA will not consider a veteran who is disabled for a period of 30 days or less as having 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 C.F.R. § 21.7051(a)(2)(2007). During the course of this appeal, the veteran has been granted the following: 1) an extension of his delimiting date for the period of August 8, 1997 to March 24, 1998 due to his ankle injury with delimiting date extended to April 9, 2002; and 2) extension of his delimiting date for the periods of December 14, 1999 to March 22, 2000 and July 1, 2001 to October 1, 2001 due to ankle and foot conditions with delimiting date extended by five months and 28 days. Although the veteran asserts that symptoms and treatment for his PTSD and ankle and foot problems among other physical disabilities prevented him from pursuing a education program for additional periods during his eligibility for Chapter 30 educational assistance benefits, a review of the medical evidence does not show that a program of education was medically infeasible due to mental or physical disability during the applicable eligibility period for any additional periods, for reasons explained in greater detail below. The veteran has reported that he was unemployed with some part-time work after leaving service until approximately 1992. The veteran's medical records from 1992 to 1994 show that the veteran received readjustment counseling and had temporary or part-time jobs during that period and was laid off in February 1993. However, there is no indication that any disability restricted the veteran from pursuit of a program of education at any time relevant to this portion of the appeal period. Indeed, a November 1992 General Medical Examination report notes that the examiner found that the veteran remained employable at that time despite the veteran's report of recurrent mood swings and receipt of psychiatric care. Relevant treatment records also contain no information to suggest that any disability prevented the veteran from pursuing a program of education for any time relevant to the current appeal with respect to that portion of the eligibility period. In October 1994, the veteran obtained full time employment with a railroad company and the record reveals that the veteran has been working full time for that employer since that time. Except for the periods noted above for which the veteran was granted extension due to physical disability, the veteran's history of full time employment during this latter portion of the applicable eligibility period tends to demonstrate that he was not prevented from pursuing a program of education during that time as he chose and was able to maintain full time employment. In further regard to the veteran's mental disability, the Board notes that the veteran was granted service connection for PTSD and assigned a 70 percent disability rating effective August 9, 2002 in an October 2004 rating decision. Under the General Rating Formula for Mental Disorders, a 70 percent rating requires evidence of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). In addition, the veteran's August 2004 VA PTSD examiner assigned a GAF score of 48, which reflects serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Thus, the evidence indicates a severe level of impairment due to PTSD at least since August 9, 2002. Nonetheless, at the time of the August 2004 VA PTSD examination, the veteran reported that he remained employed at the railroad company and there is no indication that the August 2004 VA PTSD examiner found the veteran to be unemployable or unable to engage in educational pursuits. Moreover, the medical evidence does not clearly establish that the veteran's psychiatric symptoms prevented him from pursuing a program of education at any time relevant to the current appeal. The Board notes that the veteran has submitted a letter dated in May 2005 from his treating podiatrist, Dr. M.W., which noted that the veteran was unable to work or attend school due to his foot problems from October 2002 to December 2003. Additionally, the veteran submitted a letter from his treating physician, Dr. W.J.S., showing that he underwent surgery in March 2005 and was unable to attend school from March 2005 to April 2005 due to slight complications following his procedure. However, those periods may not be considered in evaluating entitlement to additional extension of the veteran's delimiting date as they fall outside the applicable eligibility period. Although the record further contains a May 2005 letter from the veteran's podiatrist, C.E., stating that a July 1997 treatment note indicated that the veteran was to refrain from impact activities for two weeks, there is no indication that the veteran was prevented from enrolling or reenrolling in his chosen educational program or was forced to discontinue attendance because of his short period of disability at that time. For the foregoing reasons, the Board finds that the preponderance of the evidence weighs against the claim and an extension of the delimiting date under Chapter 30, Title 38, United States Code is not warranted. In reaching this conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the veteran's claim and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An extension of the delimiting date for the award of educational assistance benefits under Chapter 30, Title 38, United States Code is denied. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs