Citation Nr: 1331006 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 11-11 644 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a delimiting date after December 11, 2009, for the use of education benefits under the provisions of 38 U.S.C. Chapter 30. ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran had active military service from December 11, 1995 to December 10, 1999. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a decision of a Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The Veteran's original eligibility to receive Chapter 30 education benefits expired on December 11, 2009, 10 years after the conclusion of his service, so that was the delimiting date for exercising his right to these benefits. 2. He was prevented from initiating or completing a chosen program of education within the otherwise applicable eligibility period, however, because of physical disability that did not result from his willful misconduct. CONCLUSION OF LAW An extension of the December 11, 2009, delimiting date for Chapter 30, Title 38, United States Code educational assistance benefits by 11 months and 11 days is warranted. 38 U.S.C.A. § 3031 (West 2002 & Supp. 2012); 38 C.F.R. §§ 21.1033 21.7050, 21.7051 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA outlines procedural assistance VA must provide to Veterans in certain cases. If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied. There are some claims, however, to which VCAA does not apply. Livesay v. Principi, 15 Vet. App. 165, 178 (2001). Specifically, the VCAA has been held not to apply to claims that, as in this case, turned on statutory interpretation. Smith v. Gober, 14 Vet. App. 227, 231-2 (2000). Thus, because the law as mandated by statute, and not the evidence, is dispositive of this appeal, the VCAA is inapplicable. Mason v. Principi, 16 Vet. App. 129 (2002); see also Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought.). Extension of Delimiting Date The Veteran had active military service from December 11, 1995 to December 10, 1999. He was awarded eligibility for Chapter 30 educational assistance benefits in 2002 and was assigned a delimiting date for use of those benefits of December 11, 2009, 10 years from his discharge date. He last used his Chapter 30 educational assistance benefits in 2004. In March 2010, he submitted a Request for Change of Program. He contends that VA personnel told him that he was eligible for educational assistance and he resultantly enrolled in various classes that he needed to become a merchant marine; however, he asserts that three weeks later he was told that he was ineligible as his benefits had expired. Being a victim of misinformation regarding a claim cannot estop the government from denying a benefit. See McCay v. Brown, 106 F.3d 1577, 1582 (Fed. Cir. 1997) and see also Bailey v. West, 160 F.3d 1360 (Fed. Cir. 1998); Walker v. Brown, 8 Vet. App. 356 (1995); and Lozano v. Derwinski, 1 Vet. App. 184, 186 (1991). He nonetheless is requesting an extension of his initial delimiting date of December 11, 2009, on account of extenuating circumstances. In a statement received in October 2010, he indicated that he had worked in the mortgage industry for many years, on a full-time basis. But starting in March 2008, he related that he had been trying to embark on a new career due to a downturn in the mortgage field. He wanted to become an offshore man, but was suffering from a hip disability and had to get the pain under control before he could begin training in that other field. In an April 2011 letter he clarified that it was in January 2009 that he actually sought to change careers, but was prevented from doing so due to his hip disability. He said that, by March 2010, he was physically able to attend classes and did so. In support of his contentions, he submitted a statement from his private physician who indicated the Veteran had suffered from avascular necrosis of his hips since October 2005, and that this was an ongoing disability that had prevented his school attendance. The law generally provides that educational assistance or supplemental educational assistance will not be provided to a Veteran beyond ten years from the later of (i) the date of a Veteran's last discharge or release from a period of active duty of 90 days or more of continuous service; (ii) the date of a Veteran's last discharge or release from a shorter period of active duty if the discharge or release is because of a service-connected disability, a medical condition which preexisted such service and which VA determines is not service connected, hardship, or was involuntary for the convenience of the Government after October 1, 1987, as the result of a reduction in force; or (iii) the date on which a Veteran meets the requirements for four years service in the Selected Reserves found in 38 C.F.R. § 21.7042(b) and 38 C.F.R. § 21.7044(b). 38 U.S.C.A. § 3031(a); 38 C.F.R. § 21.7050(a). VA regulations allow for an extension of the ten-year delimiting period upon a showing that the Veteran timely applied for the extension and upon a showing that he was prevented from initiating or completing his 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. 38 C.F.R. §§ 21.1033(c); 21.7051(a). The regulations further state that it must be clearly established by medical evidence that a program of education was medically infeasible and that VA will not consider a Veteran who was disabled for a period of thirty days or less as having been prevented from initiating or completing a chosen program unless the evidence establishes he was prevented from enrolling or reenrolling in the chosen program or was forced to discontinue attendance because of the short disability. 38 C.F.R. § 21.7051(a)(2). In this case, the Veteran's delimiting date, as noted, was December 11, 2009. He submitted a timely application for benefits in March 2010 since the application was received within one year of the delimiting date. See 38 C.F.R. § 21.1033. He contends that his physical disability, affecting his hips in particular, prevented the use of his Chapter 30 benefits from January 1, 2009 until his delimiting date in December 2009. He states that he was prevented from initiating or completing his chosen program of education within the otherwise applicable eligibility period because of a physical disability that did not result from his willful misconduct. VA provided a form for his physician to complete and return to determine whether the Veteran indeed was prevented from school attendance. His physician completed the form, as noted, stating that school attendance was prevented from 2005 onwards. He did not provide an end date, but only stated that the prevention was ongoing. Additional medical evidence by way of an X-ray and magnetic resonance imaging (MRI) were provided which confirmed the nature of the Veteran's bilateral hip disability, as the physician had discussed on the form he was provided. The RO denied the claim on the basis that the Veteran had been working full time and since the medical form did not indicate that he was prevented from going to school, but was prevented from working full time and there was no rationale provided. The Board has reviewed this form, however, and the commenting physician indicated the bilateral hip disability precluded school attendance. No rationale was required on the form, especially considering there is not any space provided for any such comment. The form is a "fill-in-the-blank" type, merely with a space for the physician's signature attesting to his responses. The Board therefore finds that the form was completed in full or, at the very least, reasonably to the extent expected. Also, even if the Veteran was employed, that does not mean that he could engage in all types of programs of education. His program of education required physically strenuous activity. VA statutes and regulations does not require unemployability during the time period at issue. The Board will not supplement the record with unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Conversely, health care professionals are experts and presumed to know the requirements applicable to their practice and to have taken them into account in providing an assessment. See Cohen v. Brown, 10 Vet. App. 128, 137 (1997). The Board therefore accepts that the type of schooling desired by the Veteran was prevented by his bilateral hip disability beginning in October 2005, as indicated by the commenting physician. It is clear that the courses are physically demanding (fire fighting, water survival, etc.) so the examiner's assessment that the Veteran's bilateral hip disability prevented his participation in these courses is plausible. Although the physician provided no end date, it seems clear from the form that as of September 2010 he did not believe the Veteran should participate in this type of school attendance. Nevertheless, the Veteran felt that as of March 2010 he was able to do so. This does not invalidate the physician's opinion that the Veteran's participation was not advised by him. The Veteran indicated he was interested in changing career fields. Such changes are permitted by VA. Indeed, the question before the Board is not whether the requested change is prudent, rather, whether permissible and whether the Veteran was prevented from initiating or completing his chosen program of education within the otherwise applicable eligibility period because of a physical disability that did not result from his willful misconduct. Also, medical evidence must be of record establishing that the program of education was medically infeasible. The Veteran sought to participate in training in January 2009, but could not because of his bilateral hip disability that is not the result of his willful misconduct. The medical evidence supports the notion that he could not participate during the asserted time period, from January 1, 2009 until the delimiting date of December 11, 2009, in his chosen program of education. For these reasons and bases, an overall view of the records establishes that he is entitled to the extension of 11 months and 11 days (January 1, 2009 until his delimiting date of December 11, 2009). His hip disability prevented him from participating in his chosen program of education within the otherwise applicable eligibility period. See 38 C.F.R. § 21.7051(a) (2). The medical evidence of record supports this conclusion. Thus, the criteria are met for an extension of the Chapter 30 delimiting period for 11 months and 11 days. ORDER Entitlement to an additional 11 months and 11 days of educational assistance benefits under Chapter 30, Title 38, of the United States Code, is granted. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs