Citation Nr: 1512085 Decision Date: 03/20/15 Archive Date: 04/01/15 DOCKET NO. 09-27 307 ) 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 educational assistance benefits. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Papavizas, Associate Counsel INTRODUCTION The Veteran had active service from June 1995 to December 1998. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) and Education Center in Muskogee, Oklahoma (Agency of Original Jurisdiction or AOJ). A Travel Board hearing was held at the RO in Jackson, Mississippi, in March 2011 before the undersigned Acting Veterans Law Judge and a copy of the hearing transcript has been added to the record. In August 2012, the Board remanded this matter to the AOJ for additional development. The Board notes in this regard that, although the AOJ did not comply with the terms of the August 2012 remand, because the Veteran's claim is being granted in full (as discussed below), another remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998) (Board remand confers on appellant, as matter of law, right to compliance with remand orders); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). The Board notes that, although the Veteran previously was represented by Texas Veterans Commission (TVC) before VA, because he currently lives within the jurisdiction of the RO in Jackson, Mississippi, and no longer lives within the state of Texas, he can no longer be represented by TVC. Thus, he is considered unrepresented before VA. This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. FINDINGS OF FACT 1. The Veteran's basic delimiting period for receiving Chapter 30 educational benefits expired on December 18, 2008, ten years from the date of his separation from active service. 2. The Veteran's application for an extension of the delimiting date for his educational benefits was received in January 2009. 3. Resolving all reasonable doubt in the Veteran's favor, the evidence suggests that he was prevented from initiating or pursuing a program of education between December 19, 1998, and November 8, 2007, because of physical disability not the result of his own willful misconduct. CONCLUSION OF LAW The criteria for entitlement to an extension of the delimiting date for educational assistance for a period of disability between December 19, 1998, and November 8, 2007, have been met. 38 U.S.C.A. §§ 501, 3011, 3031 (West 2014); 38 C.F.R. §§ 3.102, 21.7050, 21.7051 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2014). VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Board is granting in full the benefit sought on appeal-extension of the delimiting date for educational benefits under the provisions of Chapter 30, Title 38, United States Code (Montgomery GI Bill (MGIB)). Accordingly, the Board finds that all notification and development actions needed to fairly adjudicate this aspect of the appeal have been accomplished and that any error committed with respect to either the duty to notify or the duty to assist was harmless. In general, educational assistance or supplemental educational assistance under the MGIB, Chapter 30 of Title 38, United States Code will not be provided to a Veteran beyond ten years from the date of his or her last discharge or release from a period of active duty of 90 days or more of continuous service. 38 U.S.C.A. § 3031(a); 38 C.F.R. § 21.7050(a). However, provided that the claimant timely applies for an extension of the ten-year delimiting period, such an extension may be granted, in relevant part, if the evidence shows that the claimant 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. § 21.7051(a). To this end, it must be clearly established by medical evidence that a program of education was medically infeasible. Id. If such is established, then the delimitating date will be extended in accordance with the provisions of 38 C.F.R. § 21.7051(c) for the length of time that the individual was prevented from initiating or completing the chosen program of education. VA must receive a claim for an extended period of eligibility by the later of the following dates: (1) one year from the date on which a Veteran's original period of eligibility ended, or (2) 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). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Here, the Veteran was discharged from active duty on December 18, 1998, and his 10 year period of eligibility therefore expired December 18, 2008. There is no evidence that demonstrates that the Veteran had any active duty after December 18, 1998. In January 2009, the Veteran applied for an extension of his delimiting date. He reported that he was not able to utilize his education benefits for the first nine years after his discharge from the military because he was not well enough to attend school because he was struggling to maintain his employment and manage his multiple sclerosis (MS) disability. The Board notes that the claim for an extension of the delimiting date was timely as it was received within one year from the date on which the Veteran's original period of eligibility ended. Review of the evidence of record reveals that the Veteran received a diagnosis of MS by private physician Dr. D. V. Klassett as early as September 1998. In November 1998, the Veteran was found to be physically unfit for active duty service due to recurrent syncope. In December 1998, the Veteran was discharged from the military due to blackouts which he maintains were an early symptom of his MS. The Veteran's ongoing MS is reflected in a June 30, 2009 private medical record where he sought treatment for complaints of MS and was assessed with "MS by history." The record also contains an in-service neurological opinion dated October 22, 1998, which reflects the examiner's opinion that the Veteran did not have MS and notes that recent examinations by this same in-service clinician and by a private physician had been normal. The October 1998 in-service examiner also stated somewhat equivocally that, based upon abnormalities noted on the Veteran's contemporaneous MRIs, he could not rule out the possibility that a lesion noted was a demyelinating lesion and possibly the beginning of MS. This examiner nonetheless concluded that the probability was very small and the Veteran did not meet the criteria for MS at that time. The Veteran has asserted in lay statements and Board hearing testimony that, for at least seven years, his MS symptoms were difficult to manage. He also has asserted that, due to the added pressures of his work and the illnesses of his child and wife, his MS made it impossible to pursue any activities outside of work which was necessary to support his family. Specifically, between 1999 and 2004, the Veteran averred that his MS symptoms were so severe that he was unable to perform normal every functions such as the ability to walk. The Veteran also pursued various non-conventional treatments for his MS because, as he claims, there are no known cures for MS and these treatments allowed him to at least be able to work to support his family. Nevertheless, working daily took a monumental toll on the Veteran. He found that at the end of each day he had no energy to be able to focus on anything else. In 2005, the Veteran's MS went into remission but he was involved in a motor vehicle accident that year that triggered his MS. In 2006, the Veteran lost his 8-year job as a manager due to his MS which prevented him from adequately performing his duties. The Veteran regained employment but, in 2007, he lost another job and at this time began to realize that he needed to further his education to be able to provide adequately for his family. Consequently, the Veteran filed for education benefits on November 9, 2007. The Veteran testified credibly and persuasively at his Board hearing about the harmful impact of his MS on his ability to pursue an education, work to support his family, and complete his activities of daily living. See Board hearing transcript dated March 30, 2011. The Board notes in this regard that MS is defined as a disease in which there are foci of demyelination throughout the white matter of the central nervous system, sometimes extending into the gray matter. Symptoms usually include weakness, incoordination, paresthesias, speech disturbances, and visual complaints. MS is a prolonged disease with remissions and relapses occurring over a period of many years. The etiology of MS is unknown. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1706 (31st ed. 2007). Thus, the Board infers that the Veteran is likely to experience periods of remission and relapse due to MS. See Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010) ("The evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder."). The Board also notes that, in the August 2012 remand, it attempted to obtain additional medical evidence clarifying the Veteran's current prognosis with regard to his MS. As noted in the Introduction, the AOJ failed to comply with the terms of the August 2012 remand and the additional medical evidence sought by the Board could not be obtained. Given the gravity of the Veteran's physical condition due to his MS, the Board subsequently concluded on a de novo review of the claims file that there was sufficient evidence of record to adjudicate his claim. The Board finds that the evidence is in relative equipoise on the issue of whether the Veteran is entitled to an extension of the delimiting date for education assistance benefits. There is evidence both for and against finding that the Veteran's delimiting date should be extended. For example, there is medical evidence in support of and against a diagnosis of MS for the Veteran. There also is medical and lay evidence showing that the Veteran's MS prevented him from initiating a program of education due a physical disability until this condition was resolved sufficiently in November 2007. Under these circumstances, the Board finds that the Veteran's delimiting date for education assistance benefits should be extended by the period of his disability due to MS. The earliest evidence of onset of the Veteran's MS is dated October 11, 1998, prior to his discharge from active service on December 18, 1998. Accordingly, and after resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran is entitled to an extension of the delimiting date for educational assistance for a period of disability due to MS between December 19, 1998 (the day after the date of his discharge from active service), and November 8, 2007 (the day before he filed his education benefits claim). The Board finally notes that, when, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102 (2014); 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an extension of the basic 10-year period of eligibility for receiving educational assistance benefits under the provisions of Chapter 30, Title 38, United States Code (Montgomery GI Bill), beyond the delimiting date of December 18, 2008, for a period of 8 years, 10 months, and 20 days, is granted, subject to laws and regulations governing the payment of monetary benefits. ____________________________________________ MICHAEL T. OSBORNE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs