Citation Nr: 1453376 Decision Date: 12/04/14 Archive Date: 12/10/14 DOCKET NO. 10-05 169 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California 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, beyond July 30, 2006. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from July 1976 to July 1979 and from September 1983 to September 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision rendered in March 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) Educational Center in Muskogee, Oklahoma. The case was subsequently transferred to the RO in Oakland, California. FINDINGS OF FACT 1. The Veteran's delimiting period for the use of educational assistance benefits under Chapter 30, Title 38, United States Code, Montgomery GI Bill (MGIB) ended on July 30, 2006. 2. The Veteran's claim for educational benefits, also considered a request for an extension of his delimiting date, was received in March 2009, over a year after the expiration of his period of eligibility. 3. Evidence of record does not show that the Veteran was 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 30, 2006, are not met. 38 U.S.C.A. § 3031 (West 2002 & Supp. 2014); 38 C.F.R. §§ 21.1033, 21.7050, 21.7051 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Although VA has statutory and regulatory notice and duty to assist provisions, those provisions are not applicable herein, as the above-captioned claim is being denied as a matter of law. Manning v. Principi, 16 Vet. App. 534, 542 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2014). In addition, the United States Court of Appeals for Veterans Claims (Court) has held that the duties to notify and assist are relevant to Chapter 51 of Title 38 of the United States Code but do not apply in educational benefits situations, which are governed by Chapter 30 of Title 38. See Barger v. Principi, 16 Vet. App. 132, 138 (2002); see also Lueras v. Principi, 18 Vet. App. 435 (2004); Sims v. Nicholson, 19 Vet. App. 453 (2006). The applicable notification and assistance procedures for educational assistance claims under 38 C.F.R. § 21.1031(b) and § 21.1032(d) emphasize that VA has no further duty to notify or assist the claimant when the undisputed facts render the claimant ineligible for the claimed benefit under the law, as is the case here. Nonetheless, the Board notes that the Veteran was provided with a copy of the March 2009 decision denying the benefit claimed. A statement of the case issued in October 2009 that responded to the arguments and assertions voiced in the Veteran's notice of disagreement, identified the evidence considered, and advised the Veteran of the reasons why the claim remained denied. The Veteran is seeking an extension of the delimiting date beyond July 30, 2006, for educational assistance benefits under Chapter 30, Title 38, United States Code, MGIB. Generally, a veteran who entered active duty after June 1985 and who is eligible under the MGIB is entitled to 36 months of educational assistance, which must be used within ten years of discharge from active duty. 38 U.S.C.A. § 3031; 38 C.F.R. § 21.7050(a). The time limitation begins to run on the date of the veteran's last discharge or release from a period of active duty of ninety days or more of continuous service. Id. In this case, the Veteran served on active duty from July 21, 1976, to July 20, 1979, and from September 22, 1983, to September 30, 2000. A veteran who had eligibility for educational assistance under 38 U.S.C.A., Chapter 34 and who is eligible for educational assistance under 38 U.S.C.A., Chapter 30, as is the situation in this case, since the Veteran first entered active service prior to June 30, 1985, will have the ten-year period of eligibility reduced by the number of days the veteran was not on active duty during the time period beginning on January 1, 1977, and ending on June 30, 1985. 38 U.S.C.A. § 3031(e)(1); 38 C.F.R. § 21.7050(b)(1). Evidence of record reflected that the Veteran's basic delimiting date or the expiration date of his ten-year period of eligibility would be December 1, 2010. However, when subtracting the Veteran's total length of break in days between his periods of active duty, 1,524 days, from his basic delimiting date of December 1, 2010, his adjusted delimiting date was July 30, 2006. Id. In March 2009, the Veteran filed his present claim for educational benefits, also considered a request for an extension of his delimiting date. He indicated that he wanted to enroll in a Graduate Health Care Administration Program at University of Phoenix. He further reported that he stopped his last training at his prior school upon graduation in August 2004. He asserted that he was informed that he did not have any educational benefits left when he graduated in August 2004, was told to seek Vocational Rehabilitation at that time to get his master's degree, and was later told that he had at least 16 to 18 months of educational benefits left. During his October 2014 hearing, the Veteran reported that he was never "briefed" or informed of the time frame for his educational benefits eligibility. The law provides that VA shall grant an extension of the applicable delimiting period provided that the veteran applies for an extension within a specified time period, and that 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 the veteran's willful misconduct. 38 C.F.R. § 21.7051(a)(2). 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 the veteran's original period of eligibility ended, or one year from the date on which the 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). 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. Id. In this case, the basic facts are not in dispute. The outcome of this case is based upon the determination of the Veteran's delimiting date for these benefits and whether he filed a timely extension request or can show good cause for not filing a timely extension request. The Veteran does not assert that he was prevented from initiating or completing the chosen program of education within the otherwise applicable eligibility period because of a physical or mental disability. Instead, he has asserted that he can show good cause for not filing a timely extension request, as he was not informed or misinformed of the time frame for his educational benefits eligibility. The Board emphasizes that the good cause standard is strict, mandating that a claimant "could not" have pursued education. In weighing the merits of the Veteran's contentions, the Board is also mindful of the presumption of regularity that VA and other government officials perform their duties correctly, fairly, in good faith, and in accordance with law and governing regulations. Marsh v. Nicholson, 19 Vet. App. 381 (2005); Woods v. Gober, 14 Vet. App. 214, 220-21 (2000); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (applying the presumption of regularity to official duties of the RO). But this presumption of administrative regularity is not absolute or unwavering, as it may be overcome by the submission of "clear evidence to the contrary." Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992). The Veteran's explanation of his circumstances does not constitute good cause for his failure to file a claim or an extension request for educational benefits prior to March 2009. The Veteran presented no witnesses or other objective evidence, besides his statements during the October 2014 Board videoconference hearing, to rebut the presumption of regularity. More importantly, the record contains a copy of a letter previously associated with the record that was sent to the Veteran. It clearly informed him that he must use his educational benefits before July 30, 2006. Thus, the Board finds that the Veteran has not provided good cause for his failure to file an extension request for MGIB education benefits prior to March 2009. In the absence of good cause, his extension request cannot be accepted as timely. In sum, the Board has found that the Veteran's MGIB delimiting date is July 30, 2006. The Veteran's request for an extension of the period of his MGIB eligibility was received by the RO in March 2009. To be timely, the Veteran's extension request needed to have been received by VA prior to or on July 30, 2007. The Board has found that good cause does not exist to extend the deadline for filing a timely delimiting date extension request. His extension request was received over a year after July 30, 2007. The Board concludes that the Veteran's March 2009 extension request was untimely. 38 C.F.R. §§ 21.1033(c), 21.7051(a). As the Veteran did not apply for educational 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 30, 2006, is not warranted. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An extension of the delimiting date for educational assistance benefits under Chapter 30, Title 38, United States Code, MGIB, beyond July 30, 2006, is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs