Citation Nr: 1534355 Decision Date: 08/11/15 Archive Date: 08/20/15 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 Veteran's delimiting date for receiving Chapter 30 educational assistance benefits under the Montgomery GI Bill (MGIB) beyond April 11, 2007. ATTORNEY FOR THE BOARD H. M. Walker, Counsel INTRODUCTION The record reflects the Veteran served on active duty from July 1995 to April 1997. This matter is before the Board of Veterans' Appeals (Board) on appeal from 2010 determinations by the Education Center located at the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In May 2010, the RO in Reno, Nevada, received the Veteran's request to withdraw his claim for an extension of the delimiting date for his MGIB benefits. The Muskogee Education Center did not receive the withdrawal until July 2010-after it had issued the June 2010 Statement of the Case (SOC). Nevertheless, the Veteran filed a substantive appeal (VA Form-9) in July 2010. As such, the Board will proceed with the issue on appeal. The Veteran's claim was most recently remanded in April 2014, and has since been returned to the Board for adjudication. In addition to a paper claims file, the Veteran also has an electronic file in Virtual VA and/or VBMS. The Board has reviewed both the paper and electronic records in rendering this decision. FINDINGS OF FACT 1. Ten years from the date of the Veteran's separation from active service was April 11, 2007; therefore, the Veteran's basic delimiting period for receiving MGIB educational benefits has expired. 2. The Veteran filed for an extension of his Chapter 30 delimiting date in February 2010. 3. The record does not establish that the Veteran was prevented from initiating/completing a chosen program of education within the otherwise applicable eligibility period because of physical and mental disabilities that did not result from his willful misconduct. CONCLUSION OF LAW An extension of the April 11, 2007, delimiting date for Chapter 30, Title 38, United States Code, educational assistance benefits is not warranted. 38 U.S.C.A. § 3031 (West 2014); 38 C.F.R. §§ 21.7050, 21.7051 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Board also notes, however, that the United States Court of Appeals for Veterans Claims (Court) has held that VCAA notification procedures do not apply in cases where the applicable chapter of Title 38, United States Code contains its own notice provisions. See Barger v. Principi, 16 Vet. App. 132, 138 (2002) (VCAA notice was not required in case involving a waiver request). In the present case, specific VCAA notice was not required because the applicable regulatory notification procedure was contained in 38 C.F.R. § 21.1031 for claims under Chapter 30, not the VCAA. Under 38 C.F.R. § 21.1031(b) "if a formal claim for educational assistance is incomplete, or if VA requires additional information or evidence to adjudicate the claim, VA will notify the claimant of the evidence and/or information necessary to complete or adjudicate the claim and the time limit provisions of § 21.1032(d)." As detailed below, the resolution of this case depends primarily upon the date of the Veteran's discharge from military service. In July 2014, the VA Muskogee Education Center sent the Veteran notice requesting that he submit more information regarding his request for a delimiting date extension. Namely, what disability kept him from training/school, the exact beginning and ending dates that he could not attend an education program, and why he was unable to enroll or continue an education program. To date, the Veteran has not replied. The Board finds that reasonable attempts were made to clarify the nature of the Veteran's claim, but he has provided no response. It is important to note that a duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Given the August 2014 VA opinion; the association of outstanding treatment records; the notice letter sent to the Veteran to specifically describe the dates and nature of his inability to attend classes; and the subsequent readjudication of the claim; the Board finds that there has been substantial compliance with its April 2014 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board further notes that the provisions of the VCAA have no effect on an appeal, as in the case here, where the law, and not the underlying facts or development of the facts, is dispositive of the matter. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002); see also Smith v. Gober, 14 Vet. App. 227, 230 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOGCPREC 5-2004 (June 23, 2004). In fact, 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. Therefore, the Board finds that no further action is necessary under the statutory and regulatory duties to notify and assist. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice or lack thereof. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Legal Criteria Chapter 30 of Title 38, United States Code, sets forth provisions to allow for educational assistance for members of the Armed Forces after their separation from military service. See 38 U.S.C.A. §§ 3001 et seq. (West 2002). 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 his last discharge or release from a period of active duty of 90 days or more of continuous service; (ii) the date of his 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 he meets the requirements for four years of service in the Selected Reserves found in 38 C.F.R. § 21.7042(b) and 38 C.F.R. § 21.7044(b). See 38 U.S.C.A. § 3031(a) (West 2002); 38 C.F.R. § 21.7050(a) (2014). The general rule with regard to educational assistance benefits under Chapter 30 is that the period within which an individual may use such benefits expires at the end of the 10-year period beginning on the date of such individual's last discharge or release from active duty. 38 U.S.C.A. § 3031(a); 38 C.F.R. § 21.7050(a). Exceptions to this rule provide that the 10-year period can be extended if (1) the individual was initially prevented from establishing eligibility for educational assistance due to the character of discharge, but was later able to establish eligibility as a result of a change, correction, modification, or other corrective action by competent military authority, (2) the individual was captured and held as a prisoner of war by a foreign government or power after the last discharge or release from active duty, (3) the individual was prevented from pursuing the chosen program of education before the expiration of the 10-year period because of a physical or mental disability not the result of his/her own willful misconduct, (4) the individual was enrolled in an educational institution regularly operated on the quarter or semester system and the period of entitlement under 38 U.S.C.A. § 3013 expired during a quarter or semester, or (5) the individual was enrolled in an educational institution not regularly operated on the quarter or semester system and the period of entitlement under 38 U.S.C.A. § 3013 expired after a major portion of a course was completed. 38 U.S.C.A. § 3031(b), (c), (d), and (f); 38 C.F.R. §§ 21.7050(f)-(g), 21.7051(a), 21.7135(s) (2014). VA regulations allow for an extension of the ten-year delimiting period upon a showing that the claimant 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. See 38 C.F.R. § 21.7051(a) (2014). 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 that the veteran was prevented from enrolling or reenrolling in the chosen program or was forced to discontinue attendance because of the short disability. See 38 C.F.R. § 21.7051(a)(2) (2014). Factual Background and Analysis The Veteran seeks a delimiting date beyond April 11, 2007, for his MGIB benefits. He specifically contends that his service-connected seizure disorder (100 percent disabling) prevented him from attending school between April 11, 1997, and April 11, 2007. He contends he wanted to wait until his symptoms improved before he enrolled in any type of education program. Importantly, extension requests are subject to timeliness restrictions. 38 C.F.R. §§ 21.1033(c), 21.7051(a). An extension may also be granted when a claimant establishes good cause for an untimely request. 38 C.F.R. § 21.1033(e). 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 the eligible claimant'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 a claimant is required to act to perfect a claim or challenge an adverse VA decision. VA may grant such an extension only when the following conditions are met: (1) when a claimant requests an extension after expiration of a time limit, and (2) the claimant must show good cause as to why he/she could not take the required action during the original time period and could not have taken the required action sooner. 38 C.F.R. § 21.1033(e). The Veteran's request for an extension is deemed to have been received in February 2010 when he requested consideration for educational benefits. As the Veteran's delimiting date was April 11, 2007, he would have had to make his extension request no later than April 11, 2008. The Veteran was not shown to have a physical or mental disability during this timeframe that would have prevented him from beginning or resuming a chosen education program. As such, the time limit for the extension request was no later than April 11, 2008. The Veteran's request was received nearly 2 years after the one year deadline for requesting an extension. Therefore, his request for an extension was not timely. The Board also finds that in addition to the extension request being untimely, the Veteran has not shown good cause for this untimely request. The Veteran provided no reason for why he did not file an extension request earlier than February 2010-other than his general contentions that he waited until his seizure disorder stabilized before filing for education benefits. As will be discussed more fully below, the Veteran's seizure disorder was not of a severity to prevent him from initiating and attending an education problem, nor does the medical evidence show that his seizure disorder prevented him from making a timely extension request. Absent a showing of good cause for failure to timely request a delimiting date extension, the Board concludes that an extension is not warranted. Even if his application were found to be timely, the Board finds that the Veteran's circumstances were not such that an extension could be granted. Under 38 C.F.R. § 21.7051, an extension of the delimiting date may be granted if the Veteran was prevented from initiating or completing the chosen program during the original period due to physical or mental disability. Here, the Veteran contends that his service connection seizure disorder prevented him from initiating an education program. The VA medical records, however, contradict this argument. First, the Veteran is in receipt of 100 percent service-connected benefits for his seizure disorder. A review of the VA medical records dated from 1998 until the delimiting date of April 11, 2007, shows that the Veteran's last confirmed seizure was in 2000-when he chose to stop taking his seizure medication. A January 2003 VA treatment record noted the Veteran's seizure history. He had his first seizure at the age of 19, he was placed on the medication Dilantin (poor control) and then switched to Tegretol. Since its onset in service, he experienced two to three seizures per month, lasting 30-90 seconds each with 5-30 minutes of post-seizure confusion. By 2000, his seizures were well-controlled, and he has remained essentially seizure free since then. Most subsequent VA treatment records note that the Veteran's seizures were well-controlled with one questionable seizure episode in December 2003 and another seizure noted in early-2009. In August 2014, the Veteran's claims file was sent to a VA physician for an opinion. Following review of all medical records, the examiner opined that the Veteran's condition has been stable, and it is less likely than not that his service-connected seizure disorder would have impacted his ability to initiate and pursue an education program from 1997 to the present. In reaching this conclusion, the examiner noted the Veteran's clinical history showing his seizures were well-controlled, and there are no records showing emergency room, primary care, or inpatient visits for seizure recurrence. There is no clinical opinion to the contrary. The Veteran had the opportunity to choose to use his Chapter 30 benefits during any period prior to April 11, 2007, but he did not. Accordingly, the Board finds that the Veteran does not meet the requirement of physical or mental disability which prevented from initiating or completing his educational program and, therefore, his request for an extension of the delimiting date must be denied. See 38 C.F.R. § 21.7051. Although the Board recognizes the Veteran's assertions that his seizure disorder prevented him from initiating or completing his chosen program of education within the applicable eligibility period, there is no medical evidence to establish that fact. Again, the regulation requires that it be clearly established by medial evidence that such a program of education was medically infeasible. 38 C.F.R. § 21.7051(a)(2) (2014). No such evidence exists in this case. In fact, the August 2014 VA examiner opined that the Veteran's seizure disorder would not have impacted his ability to initiate and pursue and education from 1997 to the present. Applying the law to the facts shown, the Board finds that the Veteran was not prevented from initiating or completing a chosen program of education after between April 11, 1997, to April 11, 2007, due to physical or mental disability, and his February 2010 request for extending the delimiting date beyond April 11, 2007, was untimely. The Board is certainly sympathetic to the Veteran's claim and particular circumstances, it is bound by the law and is without authority to grant benefits on the basis of equity. 38 U.S.C.A. §§ 503, 7104 (West 2014); Harvey v. Brown, 6 Vet. App. 416 (1994). The Courts have held that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). Unfortunately, the law does not permit an extended delimiting date in the circumstances described by the Veteran. Accordingly, the claim for reimbursement must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to educational assistance benefits under Chapter 30, Title 38, United States Code, beyond April 11, 2007, is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs