Citation Nr: 1419175 Decision Date: 04/30/14 Archive Date: 05/06/14 DOCKET NO. 10-32 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an extension of the delimiting date for the award of educational assistance benefits under Chapter 30, Title 38, United States Code (Montgomery GI Bill), beyond April 10, 2007. ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1995 to April 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from 2010 administrative decisions by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's application for educational assistance benefits under the Montgomery GI Bill on the basis that the delimiting date had expired and denied a request for an extension of the delimiting date. In December 2012, the Board remanded the case to the RO for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board remanded the case to the RO in December 2012 in order to provide the Veteran an opportunity to submit competent evidence to substantiate his claim that his service-connected seizure disorder (evaluated as 100 percent disabling effective in April 1997) prevented him from beginning or completing a program of education during the 10-year period of eligibility for Chapter 30 education benefits following his service discharge on April 10, 1997. This action was undertaken because VA law provides for an extension of the delimiting date (i.e., ending date) for receipt of Chapter 30 education benefits where medical evidence clearly established that a program of education was medically infeasible. See 38 C.F.R. § 21.7051(a)(2). In accordance with remand directives, the RO obtained the Veteran's vocational rehabilitation folder (i.e., those records that were available), associated the Veteran's entire claims file with his educational file, and sent the Veteran a letter requesting that he furnish medical information regarding treatment for his seizure disorder from 1997 to the present. The Veteran did not respond to the RO's letter. Nevertheless, it is noted that within an April 2010 Counseling Record - Narrative Report, associated with the vocational rehabilitation folder, it was reported that the Veteran was followed by the VA medical center and was taking all prescribed medications for his disability. Thus, notwithstanding the Veteran's silence as to his medical treatment information, the RO has received notice that treatment records exist at a VA medical center, and such records should be obtained as they are considered constructively of record. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain all VA records of the Veteran pertaining to his evaluation and treatment for a seizure disorder beginning in April 1997, for association with the claims file. 2. If evaluation/treatment records are obtained in conjunction with the above development, arrange to have the Veteran's file reviewed by a physician to determine the impact of the Veteran's service-connected seizure disorder on his ability to pursue an education program (e.g., enrollment in a college to attain an associate's or bachelor's degree) for the period from April 1997 to the present. The physician should provide an opinion on whether the medical evidence clearly shows that the Veteran was precluded from initiating or completing a program of education due to medical infeasibility on account of his seizure disorder. The physician should identify (with specific dates) that period or periods where it is shown that the Veteran's disability no longer prevented him from beginning or resuming a chosen program of education. 3. Upon completion of the foregoing, adjudicate the Veteran's claim for an extension of the delimiting date for the award of educational assistance benefits under Chapter 30, Title 38, United States Code (Montgomery GI Bill), beyond April 10, 2007, to include the issue of whether his request for extension was received in a timely manner, based on a review of the entire evidentiary record. If any benefit sought on appeal is not granted to the Veteran's satisfaction, provide him with a supplemental statement of the case and the opportunity to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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 the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2013).