Citation Nr: 1329060 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 10-45 295 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an extension of the delimiting date for education assistance benefits under Title 38 of the United States Code, Chapter 30 (Montgomery GI Bill), beyond November 7, 2005. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant served on active duty from July 1993 to November 1995. This matter comes before the Board of Veterans' Appeals (the Board) on appeal of an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Educational Center in Muskogee, Oklahoma. In May 2011, the appellant, along with his wife, proffered testimony before the undersigned Veterans Law Judge (VLJ), at the Oakland, California, RO. A transcript of that hearing was prepared and has been included in the claims folder for review. For the reasons indicated below, the appeal must again be remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The appellant is seeking an extension of the delimiting date beyond November 7, 2005, for educational assistance benefits under Chapter 30, Title 38, United States Code (Montgomery GI Bill (MGIB)). He contends that his physical and mental disabilities have prevented him from beginning or resuming a chosen program of education, or, alternatively that he could not attend school until some time in approximately 2007. Generally, a veteran who is eligible under the MGIB is entitled to 36 months of educational assistance, which must be used within 10 years of discharge from active duty. 38 U.S.C.A. § 3031 (West 2002); 38 C.F.R. § 21.7050(a), 21.9550 (2013). In this case, the appellant was discharged from active duty on November 7, 1995, and his 10 year period of eligibility expired on November 7, 2005. In September 2009, the appellant filed his present claim for MGIB education benefits. The law provides that VA shall grant an extension of the applicable delimiting period provided that a veteran applies for an extension within a specified time period, and he was prevented from initiating or completing the chosen program during the original period due to physical or mental disability that did not result from a veteran's willful misconduct. 38 C.F.R. § 21.7051(a)(2) (2013). It must be clearly established by medical evidence that such a program of education was medically infeasible. Id. The VA must receive a claim for an extended period of eligibility by the later of the following dates: One year from the date on which a veteran's original period of eligibility ended, or one year from the date on which a veteran's physical or mental disability no longer prevented him from beginning or resuming a chosen program of education. 38 C.F.R. §§ 21.1033(c), 21.7051(a) (2013). The Board finds that the appellant should be given the opportunity to provide competent evidence showing that he had a disabling disability that prevented commencement or completion of his chosen program of education. The appellant will be asked to submit names and addresses of physicians who treated him for the disabling disorder or disabilities. Additionally, the Board finds that the appellant's vocational rehabilitation file and the claims file should be obtained and associated with the education file, as both contain relevant information. Additionally, 38 C.F.R. §§ 21.1031, 21.1032, 21.1033 (2013) governs VA's duty to assist claimants in developing claims for VA education benefits. As a part of the duty to assist, the VA must ensure that all notification requirements and development procedures contained in 38 C.F.R. §§ 21.1031, 21.1032, 21.1033 were completed. After reviewing the appellant's education folder, it does not appear that the RO issued any duty to assist notification letters in accordance with 38 C.F.R. § 21.1031 as amended in 2007, nor is there indication that the RO considered whether all development procedures were completed. In this regard, the Board observes that 38 C.F.R. § 21.1032, which describes VA's duty to assist claimants in obtaining evidence in education benefit claims, was only enacted in 2007. As such, the Board finds that the claim must be remanded to ensure that all notification requirements and development procedures contained in 38 C.F.R. §§ 21.1031, 21.1032, 21.1033 are complied therewith. It is recognized that in remanding this issue it appears that 38 C.F.R. §§ 21.1031, 21.1032, 21.1033 were further amended in March 2009. However, such amendments apply to a new educational assistance program for individuals who served on active duty after September 10, 2001. See 74 Fed. Reg. 14, 664 (March 31, 2009). As the appellant did not have active duty after September 10, 2001, such amendments do not apply to him. Accordingly, the case is REMANDED for the following actions: 1. The RO must issue to the appellant a corrective notice letter in accordance with 38 C.F.R. § 21.1031 (2013). The appellant's education folders should be reviewed and all notification requirements and development procedures contained in 38 C.F.R. §§ 21.1031, 21.1032, 21.1033 (2007) and (2013) should be completed. 2. The RO should take appropriate action to associate with the education file the appellant's vocational rehabilitation folder. 3. The RO should take appropriate action to associate with the education file the appellant's claims file (which will allow the Board to see the disabilities for which the appellant is service connected, along with their evaluations). 4. The RO should contact the appellant and ask him to inform VA of the names, addresses, and dates of treatment from medical professionals who treated his various disorders from 1995 to the present time so that VA may attempt to obtain these records. The appellant is asked to cooperate in this endeavor. Copies of the medical records from all sources, including VA records, (not already in the claims file) should then be requested. Any response received should be memorialized in the appellant's claims file. All records obtained should be added to the claims file. If requests for any private or non-VA government treatment records are not successful, the RO should inform the appellant of the nonresponse so that he will have an opportunity to obtain and submit the records himself, in keeping with his responsibility to submit evidence in support of his claim. See 38 C.F.R. § 3.159 (2013). 5. In the interest of avoiding further remand, the RO should ensure that the requested actions have been accomplished (to the extent possible) in compliance with this remand. If any development is incomplete, appropriate corrective action is to be implemented. 38 C.F.R. § 4.2 (2013). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the issue in light of all evidence of record. If the benefit sought on appeal remains denied, the RO must furnish to the appellant and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. The case should then be returned to the Board for appellate review. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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. 2012). _________________________________________________ Eric S. Leboff 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) (2012).