Citation Nr: 1330585 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 09-46 773A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington THE ISSUE Entitlement to an extension of the delimiting date for educational assistance benefits under Chapter 30, Title 38, United States Code (Montgomery GI Bill (MGIB)), beyond July 8, 2003. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran (appellant) served on active duty from March 1988 to July 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 decision of the RO in Muskogee, Oklahoma, which denied the Veteran's claim for MGIB benefits as untimely. The record before the Board does not contain the August 2009 decision or notice letter sent to the Veteran. The RO was contacted and indicated in an August 2013 electronic communication that this decision no longer exists. As the Veteran perfected an appeal of the August 2009 decision, the Board presumes that due process has been afforded despite the incomplete procedural record on appeal. There is presumption of regularity under which it is presumed that government officials have properly discharged their official duties and in accordance with law and governing regulations. Kyhn v. Shinseki, 24 Vet. App. 228, 232 (2011) (citing Marsh v. Nicholson, 19 Vet. App. 381, 385 (2005)). This presumption of regularity has been extended to various processes and procedures associated with the claims process. Clarke v. Nicholson, 21 Vet. App. 130, 133-34 (2007). The Board has not only reviewed the Veteran's physical claims file but also the file on the "Virtual VA" system and the "Veterans Benefits Management System" to insure a total review of the evidence. The Veteran requested a hearing before the Board in his December 2009 VA Form 9. He did not report for a Board hearing scheduled in April 2011, and has offered no cause for not attending the hearing; therefore, the Board hearing request is deemed withdrawn, and the Board may proceed with adjudication of the appeal. 38 C.F.R. § 20.704(d) (2013). FINDINGS OF FACT 1. The Veteran's delimiting period for the use of Chapter 30 educational assistance benefits ended on July 8, 2003. 2. The Veteran's request for an extension of his delimiting date was received on July 23, 2009, more than one year after the expiration of his 10-year period of eligibility. 3. The Veteran was not prevented from beginning or continuing a program of education due to his own physical or mental disabilities during the original eligibility period. 4. The Veteran has not provided evidence of good cause to extend the time limit for requesting an extension of the delimiting date. CONCLUSION OF LAW The criteria for an extension of the MGIB delimiting date beyond July 8, 2003 are not met. 38 U.S.C.A. § 3031 (West 2002& Supp. 2013); 38 C.F.R. §§ 21.1033, 21.7050, 21.7051 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has satisfied the duties to notify and assist claimants in substantiating claims for VA education benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 21.1031, 21.1032, 21.7030 (2013). Upon receipt of a substantially complete application, VA must inform the claimant of the information and evidence that is necessary to substantiate the claim and inform the claimant as to which information and evidence, if any, that the claimant is expected to provide to VA, and which information and evidence, if any, that VA will seek to provide. 38 C.F.R. §§ 21.1031(b)(i)-(ii), 21.7030. Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 U.S.C.A. § 5103(a); cf. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Based on application of law to undisputed facts discussed below, the RO determined that the Veteran's basic period of eligibility for MGIB education benefits had expired. The Board agrees; this is discussed in greater detail below. No notice is required under the duty to notify when a benefit cannot be awarded based on undisputed facts. 38 C.F.R. §§ 21.1031(b)(1). The RO provided notice under the only avenue to entitlement remaining, extension of the delimiting date for MGIB education benefits. See generally 38 C.F.R. Chapter 21, Subpart K. An October 2009 letter informed the Veteran of the information and evidence that is necessary to substantiate a request for an extension of educational benefits delimiting date under the MGIB and informed him as to which information and evidence that he was expected to provide to VA, and which information and evidence that VA would seek to provide. The Board acknowledges that the October 2009 duty to notify letter was sent to the Veteran after initial adjudication of his claim in August 2009. The Board finds that timing defect was cured as to the Veteran's claim for MGIB education benefits resulted from the timing of the notice because he was subsequently provided adequate notice in October 2009, he had 30 days to respond with additional argument and evidence, and the claim was readjudicated in a November 2009 Statement of the Case. Cf. Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006). The Board also concludes that the duty to assist has been discharged. First, VA satisfied its duty to seek relevant records. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 21.1032(b)-(c). Sufficient service personnel records have been associated with the claims file to determine the Veteran's basic eligibility and the delimiting date of his eligibility. The Veteran's VA disability compensation claims file contains VA and private treatment records describing his physical disabilities. The Veteran has not identified outstanding, relevant records that he wanted associated with the record on appeal. Thus, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. Second, VA was not required to obtain a medical examination or opinion in this case. As codified, the duty to assist in VA education benefits cases does not indicate that VA shall provide medical examinations or opinions. See 38 C.F.R. § 21.1032. The duty to assist does, however, require VA to provide "reasonable assistance" even in those circumstances where provision of a medical examination or opinion is not contemplated. See DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008) (although not always required, VA's obligation to make "reasonable efforts" to assist a claimant under 38 U.S.C.A. § 5103A(a)(1) may include provision of medical examinations and opinions outside the context of disability compensation claims). A claimant may establish entitlement to a delimiting date extension by reason of a physical or mental disability that did not result from a veteran's willful misconduct. 38 C.F.R. § 21.7051(a)(2). Medical evidence must clearly establish that a program of education was medically infeasible for the extension. Id. The Board finds that a medical examination or opinion is not necessary to reach an equitable disposition in this case. As discussed further below, a delimiting date extension is only warranted in situations where the eligible claimant's own physical or mental disabilities prevent pursuit of a course of education. 38 C.F.R. § 21.7051(a)(2). The Veteran has alleged that he was unable to pursue a program of education during his basic period of eligibility in part because he was a "stay at home" parent of a disabled daughter. This does not implicate the duty to provide a medical examination or opinion. The Veteran has also alleged that he has a mental disability that should entitle him an extension. As discussed further below, the Veteran's allegation is not supported by medical evidence as required for an extension under the MGIB. His role as primary caregiver to a disabled child undermines his contention in that he was mentally incapable of pursuing an educational program. Moreover, the allegation includes only two periods of potential incapacitation, in April 2001 and January 2008. These periods are too short to either extend his delimiting date or to provide good cause for failure to file an extension on a timely basis. This is discussed further below. The remaining evidence of record does not indicate that his failure to pursue a program of education benefits during his basic period of eligibility may be the result of his own physical or mental disabilities. An examination or opinion is not warranted because there is no reasonable possibility that medical evidence will substantiate his claim. See DeLaRosa, 515 F.3d at 1322. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, 38 C.F.R. § 21.1031, or § 21.1032. Delimiting Date Extension for MGIB Education Benefits The Veteran seeks to extend the period in which he is eligible to use MGIB education benefits beyond July 8, 2003. The Veteran has alleged that he was unable to pursue a program of education during his basic period of eligibility in part because he was a "stay at home" parent of a disabled daughter. The Veteran has also alleged that he has a mental disability that should entitle him an extension. Additionally, the Veteran has objected to the concept of a delimiting date as contrary to honoring this nation's veterans. He also wrote that he should not be required to file a timely claim for education benefits because his son enlisted in the U.S. Marine Corps. For the reasons that follow, the Board finds that the Veteran was not prevented from initiating or completing the education program the chosen program during the original period due to physical or mental disability, that his claim for an extension is untimely, and that he has not shown good cause for his untimely extension claim. The Board concludes that an extension of the delimiting date for MGIB education benefits beyond July 8, 2003 is not warranted. Generally, a veteran who is eligible under the MGIB education benefits 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; 38 C.F.R. § 21.7050(a). The Board finds that the Veteran separated from his only period of active military service on July 7, 1993. The RO stated in the November 2009 Statement of the Case that the Veteran's active service ended on July 8, 1993, based on a computerized report from the Department of Defense obtained during development. The Veteran's DD Form 214 states that active service ended on July 7, 1993. The Board finds that the DD Form 214 is entitled to greater weight as to establishing the service period. The difference of a single day has no impact on the outcome of this case. The Veteran does not contend, nor is there evidence to indicate, that he had any active duty service after July 1993. The RO indicated in the October 2009 notice letter and the November 2009 statement of the case that any period of forcible detainment by a foreign government or power as a prisoner of war would not be included in the calculation of the ten year eligibility period. See 38 C.F.R. § 21.7050(g). The Veteran has made no allegation regarding being a prisoner of war after his last discharge or release from active duty. This provision is inapplicable here. The ending dates of eligibility may also be tolled based on certain National Guard service, multiple service periods as enlisted or warrant officer service and service as a commissioned officer, an additional period of active duty, meeting an initial high school education requirement, or correction of military records. See 38 C.F.R. § 21.7050(c)-(f). The Veteran indicated in his July 2009 claim for MGIB benefits that he completed high school in 1988. He had only the one period of service and his military records have not been corrected. These provisions tolling the ending date of eligibility are not for application. The Veteran has objected to the concept of a delimiting date in his December 2009 VA Form 9. He contends that this is contrary to honoring this nation's veterans. The Veteran has also objected to the delimiting date on the ground that he should not be required to file a timely claim for education benefits because his son recently enlisted in the U.S. Marine Corps. The Board notes that delimiting dates are features of all VA administered education programs. See generally 38 U.S.C.A. Chapters 30 to 36 (West Supp. 2013); 38 C.F.R. Chapter 21 (2013) (implementing 38 U.S.C.A. Chapters 30 to 36). These laws establish delimiting dates and do not extend delimiting dates based on a child's entry onto active service. The Board is required to apply the law as enacted. Applying the ten year from discharge delimiting date rule, a delimiting date of July 8, 2003, is appropriate in this case. See 21.7050(a). In order for the Veteran to receive MGIB education benefits, an extension of his delimiting date is necessary. 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). Medical evidence must clearly establish that such a program of education was medically infeasible. Id. Extension requests are subject to timeliness restrictions. 38 C.F.R. §§ 21.1033(c), 21.7051(a). An extension may also be granted when a claimant establishes good cause for an untimely request. 38 C.F.R. § 21.1033(e). For the reasons that follow, the Board finds that the Veteran's extension request was not timely, and that he has not shown good cause for his untimely request. The Board concludes that an extension is not warranted. 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 the eligible claimant'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). For the following reasons, the Board finds that July 8, 2004 is the latest date that a timely extension could have been received. The Veteran's original period of eligibility ended on July 8, 2003. A timely extension request should have been received by July 8, 2004 or one year from the date on which a disability no longer prevented him from beginning or resuming a program of education. The Veteran's statements in support of his claim indicate that he did not pursue education in part because he was acting as a caregiver to his son and disabled daughter. The regulation does not permit the family care or disability of another to be the basis for an extension of MGIB eligibility. See 38 C.F.R. § 21.7051(a). Thus, these are not grounds for a timely extension. There must be a disability of the eligible claimant, the Veteran himself. See id. The Veteran is in receipt of service connection for residuals of a cervical spine fracture, rated as 10 percent disabling. He has not alleged that this service-connected disability in any way prevented him from beginning or resuming a program of education. The Veteran submitted a statement, received by VA in October 2009, to the effect that he had been hospitalized twice for depression and attempted suicide, in April 2001 and January 2008. He referenced this again in his December 2009 VA Form 9, indicating that his mental disability qualified for extension of the delimiting period. The Board finds this evidence inadequate to warrant a finding of disability preventing pursuit of an educational program beyond July 8, 2004. An extension due to disability requires "medical evidence" to establish that an education program was "medically infeasible." 38 C.F.R. § 21.7051(a)(2). The Veteran is not qualified as a medical expert, lacking any specialized education, training, or experience in medicine. There is no indication that this treatment occurred at a VA or other Federal facility. Despite the October 2009 notice letter specifically requesting he submit medical evidence describing the disability, he did not do so. Thus, there is no medical evidence describing this period. The Veteran has reported April 2001 and January 2008 psychiatric hospitalizations. Even if the Board considers the Veteran's statements regarding hospitalization adequate lay report of medical infeasibility, the Veteran's assertions do not describe whether the periods prior to April 2001, between April 2001 and January 2008, or after January 2008, were also periods in which a mental disability prevented his pursuit of education. He asserts generally that he should receive an extension because he has a mental disability, but this is not enough for extension under the regulation. This is not adequate under the medical evidence requirement. Only if the April 2001 and January 2008 hospitalization periods consumed the whole of those months, the hospitalizations would result in an extension. The request for an extension must be received within one year from the date on which the eligible claimant'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). One year following April 2001 falls within the original eligibility period and cannot form the basis for an extension of the deadline to file. The January 2008 hospitalization occurred four and a half years after the expiration of the delimiting period. This would not be timely grounds to extend the delimiting date. Thus, neither the April 2001 nor January 2008 psychiatric hospitalizations would result in a timely filing deadline beyond July 8, 2004. In light of the foregoing, the Board finds that the extension request must have been received by July 8, 2004 to be timely. VA may extend for good cause a time limit within which the claimant or beneficiary is required to act to perfect a claim or challenge an adverse VA decision. VA may grant such an extension when the following conditions are met: (i) when a claimant or beneficiary requests an extension after expiration of a time limit, he or she must take the required action concurrently with or before the filing of that request; and (ii) the claimant or beneficiary must show good cause as to why he or she could not take the required action during the original time period and could not have taken the required action sooner. 38 C.F.R. § 21.1033(e). The Veteran's first application for education benefits was received by VA in July 2009, five years after the deadline to file an extension. The Veteran has not shown good cause as to why he could not have filed the MGIB claim earlier than July 2009. In his July 2009 claim, the Veteran included a statement that, after his separation from service in 1993, he was divorced and received custody of his son. He later remarried and had a daughter born with severe disabilities. He reports that he put his family before his education. He reported that he later divorced with support obligations and no marketable skills in a tough economy. In his August 2009 Notice of Disagreement, the Veteran stated that his daughter had been born disabled and resulting responsibilities made college impossible until recently. The Veteran submitted a statement, received by VA in October 2009, providing a post-service work, family, and medical background. He stated that he separated from service in 1993, receiving custody of his son, that he remarried and had a disabled daughter born in 1994, he was the sole income earner until December 1999 while his wife stayed at home with their daughter, his wife returned to work in December 1999, and they both worked until he became a stay-at-home dad in July 2001. He reported that the first ten years of his daughter's life, 1994 to 2004, were filled with numerous surgeries and hospital stays, and the number of appointments and sick days home from school made other pursuits impossible. He also reported that he had been hospitalized twice for depression and attempted suicide, in April 2001 and January 2008. He reported that he divorced his second wife in September 2008 and relocated to a new city. He indicated that he had ongoing child support obligations and could only get entry level positions. The Board finds that the Veteran's explanation of his circumstances does not constitute good cause for his failure to file a claim or an extension for education benefits prior to July 2009. His main contention has been that his daughter's disabilities prevented pursuit of a course of education. The Veteran's October 2009 statement indicates that the first ten years of his daughter's life were the most problematic. That period, however, ended sometime in 2004. The Veteran has not offered an adequate explanation for a failure to file an education claim or extension request between 2004 and July 2009, a period of at least four and a half years. He provided his work and residence history for this period, but these histories do not explain why he could not have taken action to apply for education benefits or an extension sooner. He has also stated that he was hospitalized following a suicide attempt in January 2008, but this only addresses one month of a four and a half year period. The Veteran has also stated that his daughter was enrolled in school. He was not, therefore, providing round the clock care. Neither the Veteran nor the evidence shows why this extra time could not have been devoted to pursuit of an educational program. The Board also notes that the MGIB provides benefits for educational enrollment in part-time, including 1/4 time, programs. The Board emphasizes that the good cause standard is strict, mandating that a claimant "could not" have pursued education. The history as reported by the Veteran leaves opportunity to pursue at least part-time education. The Board finds that the Veteran has not provided good cause for his failure extension request for MGIB education benefits in the four and a half years prior to July 2009. In the absence of good cause, his extension request cannot be accepted as timely. 38 C.F.R. § 21.1033(e)(1)(ii). In sum, the Board has found that the Veteran's MGIB delimiting date is July 8, 2003. The Veteran's original claim for MGIB benefits was received on July 23, 2009, and his request for an extension of the period of his MGIB eligibility was received by the RO on August 14, 2009. To be timely, the Veteran's claim or extension request needed to have been received by VA prior to or on July 8, 2004. The Board has found that good cause does not exist to extend the deadline for filing a timely delimiting date extension request. His education claim and extension request were received years after July 8, 2004. The Board concludes that the Veteran's July 2009 claim and August 2009 extension request were untimely. 38§ C.F.R. §§ 21.1033(c), 21.7051(a). The Board has found above that the Veteran did not apply for MGIB benefits within the original eligibility period, file a timely extension request, or provide good cause for his failure to timely file an extension request. The Board concludes that an extension of the Veteran's delimiting date for MGIB education benefits beyond July 8, 2003 is not warranted. In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine; however, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. § 3.102 (2013). ORDER An extension of the delimiting date for MGIB educational assistance benefits beyond July 8, 2003 is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs