Citation Nr: 1303796 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 10-27 313A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an extension of the Veteran's period of eligibility for receiving educational assistance benefits under the provisions of Chapter 30, Title 38, United States Code (Montgomery GI Bill), beyond the delimiting date of June 6, 2009. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active military service from February 1995 to June 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. By that rating action, the RO denied the Veteran's request for an extension of the delimiting date for the receipt of educational assistance benefits. In April 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the Board's offices in Washington DC. A transcript of this hearing is of record. At the hearing, the Veteran submitted a private medical report, along with a waiver of initial RO consideration. Thus, a remand to have the RO initially consider this evidence is not necessary. 38 C.F.R. § 20.1304 (2012). FINDINGS OF FACT 1 The Veteran's active duty service ended on June 5, 1999. The delimiting date for the basic 10-year period of eligibility for his Chapter 30 benefits ended on June 6, 2009. 2. The Veteran's application for an extension of the delimiting date was received in March 2009. 3. The preponderance of the evidence of record does not show that the Veteran was prevented from initiating a chosen program of education within the otherwise applicable eligibility period because of the disabling effects of alcoholism. CONCLUSION OF LAW The criteria for extension of the basic 10-year period of eligibility for receiving educational assistance benefits under the provisions of the Chapter 30, Title 38, Montgomery GI Bill (MGIB) beyond the delimiting date of June 6, 2009 have not been met. 38 U.S.C.A. § 3031 (West 2002); 38 C.F.R. §§ 21.7020(b)(38), 21.7050, 21.7051 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notification procedures do not apply in cases where the applicable chapter of Title 38, United States Code contains its own notice provisions. See Barger v. Principi, 16 Vet. App. 132, 138 (2002) (VCAA notice was not required in case involving a waiver request). In the present case, specific VCAA notice was not required because the applicable regulatory notification procedure was contained in 38 C.F.R. § 21.1031 (2011) for claims, not the VCAA. See 38 C.F.R. § 21.9510 (specifically applying the provisions of subpart B and 38 C.F.R. § 21.1031 to claims for educational assistance under Chapter 33). Notwithstanding the foregoing, the Veteran was sufficiently advised as to the applicable provisions of law governing his claim, as well as the reasons for the denial of such claim, in a February 2009 letter and April 2010 Statement of the Case. The Board further finds that the Veteran has been accorded appropriate due process and has presented written arguments on his own behalf in various documents submitted to VA as well as testimony before the undersigned in April 2011. The Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the April 2011 hearing, the undersigned Veterans Law Judge identified the single issue on appeal. Also, information was solicited regarding the nature of his argument. and the Veterans Law Judge clarified the evidence necessary to establish entitlement the benefit sought. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussion did not reveal any evidence that might be available that had not been submitted. As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. II. Analysis The Veteran seeks an extension of his educational assistance benefits under the provisions of Chapter 30, Title 38, United States Code MGIB, beyond the delimiting date of June 6, 2009. He maintains that from April 1, 2000 to June 1, 2002, he was precluded from seeking an education because of his chronic alcoholism. His claim for an extension was denied on the basis that alcoholism is considered willful misconduct and is not considered a disability for VA purposes. The provisions of Chapter 30, Title 38 of the United States Code MGIB, allow for educational assistance for members of the Armed Forces after their separation from military service. Generally, veterans are provided a 10-year period of eligibility during which they are entitled to use Chapter 30 educational assistance benefits. 38 U.S.C.A. § 3031(a); 38 C.F.R. § 21.7050(a). The 10-year period begins on the date of the Veteran's last discharge from active duty of 90 days or more. In the present case, the Veteran's last period of active duty ended on June 5,1999. Thus, the Veteran's delimiting date for use of Chapter 30 benefits was June 6, 2009, and it has expired. 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. 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 U.S.C.A. § 3031(d); 38 C.F.R. § 21.7051(a). The disabling effects of chronic alcoholism are not considered the result of willful misconduct. 38 C.F.R. § 21.7051(a)(2) (2012). Disabling effects of chronic alcoholism include alcohol-induced physical or mental disorders or both, such as habitual intoxication, withdrawal, delirium, amnesia, dementia, and other like manifestations of chronic alcoholism which, in the particular case, have been medically diagnosed as manifestations of alcohol dependency or chronic alcohol abuse and are determined to have prevented commencement or completion of the chosen program of education. 38 C.F.R. § 21.7020(b)(38) (2012). In his application for an extension of his delimiting date, received by the RO on March 2009, the Veteran maintained that he was unable to attend school between April 1, 2000 to June 1, 2002 because of his chronic alcoholism. (See Veteran's typed statement to VA and VA Form 21-4138, Statement in Support of Claim, received by the RO in January and early March 2009, respectively). Therefore, the question becomes if the Veteran was prevented from undergoing an educational program and, if so, on what date the Veteran was no longer prevented from beginning or resuming a chosen educational program due to disability. In this case, the Board finds that the preponderance of the evidence of record is against this finding. In support of his claim, the Veteran submitted inpatient treatment reports, prepared by Alcohol and Drug Services of Guilford, received by the RO in March 2009. These reports show that the Veteran was admitted to this private treatment facility on September 17, 2001 after he was arrested for a driving under the influence two (2) days previously. At admission, it was noted that the Veteran had some college education, that he was unemployed and that he was a full-time student. The Veteran was discharged in early October 2001 with diagnoses of drug and alcohol dependence. At discharge, it was noted that the Veteran had educational, occupational, housing, economical, and legal problems, as well as problems with primary support group, social environment and access to health care. The Veteran was noted to have been motivated for recovery. He was found, in part, to have employable skills and an ability assimilate into a 12-step program. During his hospitalization, the Veteran completed a relapse prevention book, listed his triggers and formed a prevention plan. He also stated his continued participation in a 12-step program. The Veteran was recommended to participate in an intensive outpatient treatment program at another private medical facility and to obtain stable housing that was connected to his recovery process. A Certificate of Completion, prepared by Caring Services, Inc., reflects that the Veteran been a participant in its Supportive Housing Program from October 2001 to June 2002. Evidence also submitted in support of the Veteran's claim includes a March 2001 report, prepared by M. M., Certified Substance Abuse Counselor (CSAC) at Alcohol and Drug Services (ADS) in High Point, North Carolina. M. M. indicated that the Veteran had been admitted to ADS' Detoxification and Inpatient Chemical Dependency Treatment Program on September 17, 2001. At that time, the Veteran underwent three (3) days of supervised detoxification for alcohol dependency and then transitioned to a 14-day residential treatment for alcohol and cocaine dependency. The Veteran was discharged on October 1, 2001. M. M. indicated that clinical notes from the Veteran's record indicate that a private clinician had diagnosed him with major depression for which he received an antidepressant. Thus, it was M. M.'s opinion that the Veteran had experienced a significant psychiatric disability during the period from September 17, 2001 to October 1, 2001 that would have interfered with his ability to meet normal daily responsibilities, to include education and work. After consideration of all the evidence, the Board finds the Veteran was not medically precluded from completing his education program at any time during the applicable period. The Board acknowledges the conclusion of M. M., CSAC that the Veteran had experienced a significant psychiatric disability that had interfered with his education during the time that he was an inpatient for treatment for his alcoholism from September 17, to October 1, 2001. However, the mere existence of a chronic medical problem during the claimed period from September 17, to October 1, 2001, or for the periods prior and subsequent thereto, does not establish that a program of education was medically infeasible. Here, only short-term incapacitation was shown during the period from September 17, to October 1, 2001, with no interference with the Veteran's ability to initiate or complete a program of education during this time or for any prior thereto or therefrom. The Board acknowledges that following his short-term inpatient treatment, the Veteran enrolled in a 10-week intensive outpatient treatment program for his alcohol abuse. However, even considering the Veteran's 10-week outpatient treatment in addition to his short-term inpatient treatment, the evidence of record does not clearly establish that a program of education was medically infeasible. The Veteran has not submitted any evidence showing that during his intensive 10-week outpatient treatment, he was unable to pursue his educational program under Chapter 30. There is no simply no evidence that the Veteran was actually enrolled in school during his 10-week outpatient treatment or that his alcoholism had prevented from enrolling or reenrolling in a program or that he was forced to discontinue attendance because of his short-term psychiatric disability during this time or for any time thereafter. 38 U.S.C.A. § 3031(d); 38 C.F.R. § 21.7051(a). Thus, even considering the Veteran's 10-week outpatient treatment in addition to his short-term inpatient treatment, the evidence of record does not clearly establish that a program of education was medically infeasible during these periods or for any time thereafter. Conversely, the evidence shows that the Veteran was enrolled in undergraduate course prior to and subsequent to his short-term period of incapacitation (i.e., September 17, to October 1, 2001.) VA issued an enrollment certification showing that the Veteran had enrolled for 13 hours of undergraduate coursework at NC A&T University beginning January 6, to May 5, 2000. (See VA Form 22-1999, Enrollment Certification). In February 2000, the Veteran had terminated his enrollment at the above-cited university because it was beyond the drop/add period (See VA Notice of Change of Student Status Form, dated and signed by a certifying official at NC A&T University in May 2000). A VA Notice of Change of Student Status Form, dated and signed by a certifying official at Guilford Technical Community College in January 2001, reflects that the Veteran had terminated enrollment at that institution due to a work conflict. In August 2007, the RO received from the Veteran VA Form 22-1995, Request for Change of Program or Place of Training, from the Veteran. The Veteran requested to transfer enrollment for his Bachelor's degree from NC A&T University to Guilford Technical Community College. A June 2009 record of the Veteran's final grades from Guilford College shows that he had transferred to that institution in the fall of 2008 with 30 credit hours. It was noted that the Veteran's major was accounting; that he was in good academic standing; and, that he had earned a 4.0 in three (3) classes for a total of 12 credit hours. He was placed on the Dean's List for the fall of 2008. (See December 2008 letter to the Veteran and June 2009 Final Grade report, each prepared by Guilford College). Thereafter, VA Notice of Change of Student Status Forms, dated and signed by certifying officials from Guilford College from 2007 to 2011 show that that the Veteran earned education credits during the following periods: (i) three (3) credits from August 20, to December 17, 2007; (ii) five (5) credits from January 7, to May 5, 2008; (iii) six (6) credits from May 19, to July 28, 2008; (iv) 12 credits from August 18, to December 12, 2008; (v) 12 credits from January 12, to May 6, 2009; (vi) eight (8) credit hours from May 18, to July 24, 2009; (vii) four (4) credit hours from October 26, to December 16, 2009; (viii) eight (8) credit hours for the period from August 23, to December 17, 2010; and, (ix) eight (8) credit hours for the period from January 10, to May 4, 2011. Accordingly, the Board finds that aside from the Veteran's short-term period of incapacitation from September 17, to October 1, 2001, the evidence does not clearly establish that the was prevented from initiating or completing his chosen program of education within the otherwise applicable eligibility period because of physical or mental disability that did not result from his own willful misconduct. The preponderance of the evidence is against the Veteran's claim and an extension of the delimiting date beyond June 6, 2009 for the award of educational assistance benefits under Chapter 30, Title 38, United States Code is denied. 38 U.S.C.A. §§ 3031, 5103A (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.102, 21.7050, 21.7051 (2012). ORDER Entitlement to an extension of the delimiting date beyond June 6, 2009 for the award of educational assistance benefits under Chapter 30, Title 38, United States Code is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs