Citation Nr: 1406131 Decision Date: 02/11/14 Archive Date: 02/24/14 DOCKET NO. 11-05 982 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an extension of the delimiting date for education assistance benefits under Chapter 30, Title 38, United States Code (Montgomery GI Bill), beyond August 18, 1999. ATTORNEY FOR THE BOARD H.Bunker, Associate Counsel INTRODUCTION The appellant served on active duty from July August 1988 to August 1989. This matter comes before the Board of Veterans' Appeals (the Board) on appeal of a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Educational Center in Muskogee, Oklahoma. The Veteran was scheduled for a Board hearing in May 2011; however the Veteran did not appear for this hearing. As the Veteran has not offered a statement of good cause as to why he missed the hearing, the Board will proceed as if the hearing request had been withdrawn. 38 C.F.R. § 20.702(d) (2013). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The appellant is seeking an extension of the delimiting date beyond August 18, 1999, for educational assistance benefits under Chapter 30, Title 38, United States Code (Montgomery GI Bill (MGIB)). He contends that his mental disabilities have prevented him from beginning or resuming a chosen program of education. 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 August 18, 1988, and his 10 year period of eligibility expired on August 18, 1999. In March 2010, the appellant filed his present claim for MGIB education benefits and in October 2010 the Veteran requested an extension of time to use his 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 service treatment records and entire the claims file, if one exists, should be obtained and associated with the education file, as both contain relevant information. Accordingly, the case is REMANDED for the following action: 1. The RO must issue to the appellant with a 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 should be completed. 2. 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). 3. 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 1989 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). 4. 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). 5. 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 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 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. 2013). _________________________________________________ Vito A. Clementi 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) (2013).