Citation Nr: 1329562 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 10-27 457A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUE Entitlement to an extension of the basic 10-year period of eligibility for receiving educational assistance benefits under the provisions of Chapter 30, Title 38, United States Code (Montgomery GI Bill/MGIB), beyond the delimiting date of July 1, 2009. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from October 1989 to June 1999 with 14 years, four months, and six days of prior active service. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an RO determination that a delimiting date beyond July 1, 2009 was not warranted. The Veteran is seeking educations benefits under the MGIB beyond the delimiting date of July 1, 2009. The RO implicitly denied the claim in December 2008 and April 2009 letters to the Veteran in which it essentially indicated that the Veteran would have to produce certain evidence in order to qualify for an extension of the delimiting date. These letters did not constitute formal denials of the Veteran's claim. As stated, however, they explained that without meeting the criteria outlined, the delimiting date would not be extended. Rather than providing the type of information requested, the Veteran submitted a notice of disagreement. Thus, the Veteran effectively acknowledged that the RO intended to deny his claim and he accepted the letters referenced herein as denial of his claim. As apparent from the foregoing discussion, the issue herein stems from a denial of the Veteran's claim, a notice of disagreement, a statement of the case, and a substantive appeal. The issue herein, therefore, is ripe for review. See 38 C.F.R. § 20.200, 20.201, 20.202, 20.302 (2013) (the regulations outlining the procedures for appealing unfavorable RO determinations to the Board). In February 2011, the Veteran testified at a hearing before the undersigned Acting Veterans Law Judge, which was held at the RO. A transcript of the hearing is of record. FINDING OF FACT The Veteran's active duty service ended on June 30, 1999. The delimiting date for the basic 10-year period of eligibility for his Chapter 30 benefits ended on July 1, 2009. 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 of the MGIB beyond the delimiting date of July 1, 2009 have not been met. 38 U.S.C.A. § 3031 (West 2002); 38 C.F.R. §§ 21.7050, 21.7051 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating claims 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) (2013). The United States Court of Appeals for Veterans Claims 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 is not required because the applicable regulatory notification procedure is contained in 38 C.F.R. § 21.1031 (2013). In addition, because the application of the law to the undisputed facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is necessary. Mason v. Principi, 16 Vet. App. 129 (2002). Discussion The Veteran seeks an extension of the delimiting date provided his Chapter 30 MGIB benefits beyond July 1, 2009. In his April 2009 notice of disagreement and at his February 2011 hearing, the Veteran argued that he had no legal argument to present regarding a delimiting date beyond July 1, 2009. Rather, he asked for a delimiting date beyond July 1, 2009 on the basis of good will and because he served for 24 years. The Veteran served on active duty until June 30, 1999. In November 1998, he applied for educational benefits under the MGIB (Chapter 30). In July 1999, the Veteran was awarded the desired educational benefits, and he was advised that because the delimiting date was July 1, 2009, the educational benefits would end effective July 1, 2009. Generally, Chapter 30 of Title 38, United States Code, sets forth provisions to allow for educational assistance for members of the Armed Forces after their separation from military service. 38 U.S.C.A. §§ 3001-3100 (West 2002). Veterans are provided a ten-year period of eligibility during which to use their Chapter 30 educational assistance benefits, and the ten-year period begins on the date of the last discharge from active duty of 90 days or more. 38 U.S.C.A. § 3031(a); 38 C.F.R. § 21.7050. In this case, the Veteran's last period of active duty service ended on June 30, 1999. Therefore, the 10-year period within which he had to use his Chapter 30 benefits ended on July 1, 2009. VA shall grant an extended period of eligibility beyond the 10 years when the Veteran was prevented from initiating or completing the chosen program of education within the 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. 38 C.F.R. § 21.7051. There is no allegation in this case that the Veteran had a physical or mental disability that prevented him from pursuing his educational program. At the February 2011 hearing, the Veteran indicated that he was forced to skip a semester due to treatment for prostate cancer that began in approximately June of 2010. This treatment is not relevant to the current claim because the medical treatment that allegedly rendered infeasible the pursuit of his studies took place after the July 1, 2009 delimiting date. The Board is sympathetic to the Veteran's argument that the benefit desired should be awarded on the basis of good will, as he served honorably for 24 years. The applicable law and regulations, however, do not afford the Board the power to grant educational benefits on a discretionary basis. Based on the evidence of record, the Board finds entitlement to payment of Chapter 30 MGIB educational benefits beyond July 1, 2009 is not warranted. There is no basis in fact or law by which educational benefits may be paid beyond that date. By law, educational benefits cannot be awarded beyond the 10-year delimiting period unless certain exceptions to the controlling legal criteria have been met. The Veteran does not fall within any of the exceptions, and the Board has no authority to overturn or to disregard the very specific limitations on the award of Chapter 30 educational benefits. In cases such as this, where the law is dispositive, the claim should be denied because of the absence of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Therefore, educational assistance benefits cannot be paid for education the Veteran pursued beyond July 1, 2009. ORDER Entitlement to an extension of the basic 10-year period of eligibility for receiving educational assistance benefits under the provisions of Chapter 30 of the MGIB beyond the delimiting date of July 1, 2009 is denied. ____________________________________________ T.D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs