Citation Nr: 1126124 Decision Date: 07/12/11 Archive Date: 07/19/11 DOCKET NO. 10-00 081A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether the appellant is entitled to an extension of her delimiting date beyond May [redacted], 2009 for Dependents Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code. ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The late Veteran had verified honorable active service from April 1967 to January 1972. The appellant in the present appeal is his surviving widow. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the appellant's claim for Chapter 35 DEA benefits on the basis that her original claim was filed after the established May [redacted], 2009 delimiting date for this benefit. The appellant seeks an extension of her delimiting date on appeal. FINDINGS OF FACT 1. The Veteran died on May [redacted], 1999. 2. Entitlement to DEA was established for the late Veteran's dependents prior to his date of death on the basis of permanent and total impairment due to service-connected disability . 3. The appellant is the Veteran's surviving spouse. 4. The appellant filed her present claim for Chapter 35 DEA benefits in September 2009. 5. The appellant did not have a mental disorder that prevented her from initiating or completing her chosen program of education within the otherwise applicable eligibility period. CONCLUSION OF LAW The criteria for an extension of the appellant's delimiting date for receipt of DEA benefits, Chapter 35, Title 38, United States Code have not been met. 38 U.S.C.A. §§ 3501, 3512, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 21.3046, 21.3047 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. In cases such as this where the law is dispositive, the claim must be denied due to a lack of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As such, review of the VA's duty to notify and assist is not necessary. In cases such as this, VA is not required to meet the duty to notify or assist a claimant, where a claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002); see also VAOPGCPREC 5-2004. The Board notes that the appellant's contentions rest on interpretation of the law and, therefore, do not turn on development of the facts, and the VCAA has no effect on these contentions. See Manning v. Principi, 16 Vet. App. 534, 542 (2002). The salient facts are not in dispute: the appellant's education file indicates that by rating decision dated in February 1999, entitlement of the Veteran's dependents to Chapter 35 DEA was established in January 1998. The Veteran was duly notified of this favorable determination in correspondence dated in February 1999. Thereafter, the Veteran died on May [redacted], 1999. Given these facts, it is evident that Chapter 35 DEA was awarded during the Veteran's life based on service-connected disabilities that rendered him permanently and totally disabled, and that this total and permanent rating was obviously in existence at the time of his death. In such cases, the applicable regulations provide that if the veteran's death occurred after November 30, 1968, and VA makes a final decision concerning the surviving spouse's eligibility for DEA after October 27, 1986, while a permanent and total rating for service-connected disability was in existence, the beginning date of the 10-year delimiting period of eligibility will be the date of the veteran's death. 38 C.F.R. § 21.3046(b)(5)(i) (2010). Educational assistance shall not exceed 10 years after one of the following last occurs: (A) The date on which the Secretary first finds the spouse from whom eligibility is derived has a service-connected total disability permanent in nature; (B) The date of death of the spouse from whom eligibility is derived who dies while a total disability evaluated as permanent in nature was in existence; (C) The date on which the Secretary determines that the spouse from whom eligibility is derived died of a service-connected disability. 38 U.S.C.A. § 3512(b)(1) (West 2002); 38 C.F.R. § 21.3021(a) (2010). Thusly, applying the aforementioned law and regulations to the current facts of the case, the delimiting period of eligibility to DEA for the late Veteran's surviving spouse commenced on the date of his death on May [redacted], 1999 and terminated 10 years afterward, on May [redacted], 2009. However, the education file shows that the appellant did not submit her current claim for DEA benefits at any time prior to September 2009, approximately four months after the established delimiting date. Because the 10 year period of eligibility expired prior to the date VA received her DEA claim, the question is whether the appellant was entitled to an extension of delimiting day beyond May [redacted], 2009 for eligibility for DEA benefits as a spouse. The 10-year delimiting period may be extended if the eligible spouse or surviving spouse does the following: (1) applies for the extension within the appropriate time limit; (2) "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 . . . willful misconduct;" (3) provides VA with any requested evidence tending to show that he/she was prevented from initiating or completing the program because of a physical or mental disability that did not result from the willful misconduct of the eligible spouse; and (4) is otherwise eligible for payment of educational assistance for the training pursuant to Chapter 35. 38 U.S.C.A. § 3512 (b)(2); 38 C.F.R. § 21.3047(a)(i-iv). An eligible spouse's extended period of eligibility shall be for the length of time that the individual was prevented from initiating or completing her chosen program of education. 38 C.F.R. § 21.3047(c). In this case, the evidence does not show that the criteria for extension of delimiting date for DEA eligibility were met. The education course for which the appellant seeks DEA is an English as Second Language (ESL) course. Relevant enrollment documents show that the Veteran entered this program in late August 1999, over three months after the delimiting date. The facts of the case indicate that the appellant, who is a native of Korea, never finished high school in her native country and is functionally illiterate with respect to the written English language. According to written statements from the appellant and her ESL instructors, her stated intention in entering an ESL course is to achieve proficiency in the written English language so that she can eventually earn a General Education Diploma (GED) and thus raise her standard of living, as she is presently able to obtain employment only in menial jobs because of her illiteracy and lack of education credentials. She presents the novel contention that her functional illiteracy constitutes a mental disability that prevented her from initiating her chosen program of education (ESL instruction) within the otherwise applicable eligibility period, which she contends would provide a basis to support her claim for an extension of the delimiting date beyond May [redacted], 1999. The Board, however, finds this argument to be without merit as there is no objective evidence of record to support her assertion that her functional illiteracy equates to a mental disability. Functional illiteracy is a condition of being unable to read; it is not, in and of itself, a diagnosis of a mental disability or even necessarily a learning disability. The fact that the Veteran has demonstrated awareness of her situation, personal insight, a commendable degree of personal initiative to enroll herself into an education program to improve her condition, and a capacity to learn and retain knowledge is evidence that she does not currently have a mental disability, nor did she have a mental disability during the time of her eligibility period for DEA that prevented her from initiating or completing her chosen program of education. The Board finds, as a matter of law, that to the extent that the appellant contends that she was delayed in initiating enrollment in an ESL education course as a result of functional illiteracy, this does not fall under the exceptions for extension of a delimiting date for DEA eligibility. The Board also finds that, given the information provided, the appellant's case does not fall within any of the situations provided under VA law and regulations for extending the delimiting date at issue. She was not prevented from pursuing her current educational endeavors either from physical or mental disability. For the reasons discussed above, the Board finds that the appellant is not entitled to an extension of her delimiting date for DEA benefits beyond May [redacted], 2009. To the extent that the law is dispositive, the claim is denied on the basis of the absence of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The appellant's appeal for an extension of her delimiting date for DEA benefits beyond May [redacted], 2009 is denied. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs