Citation Nr: 1626591 Decision Date: 07/01/16 Archive Date: 07/14/16 DOCKET NO. 14-07 535 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Education Center in Muskogee, Oklahoma THE ISSUE Whether the Veteran's request for an extension of the delimiting date for VA education benefits under 38 U.S.C.A. Chapter 30 (Montgomery GI Bill) beyond April 15, 2011, was timely. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from March 1993 to April 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Louis, Missouri. Jurisdiction was subsequently transferred to the RO and Education Center in Muskogee, Oklahoma. In July 2014, the Veteran was afforded a videoconference hearing before a Veterans Law Judge. A transcript of this hearing has been associated with the record. This appeal was previously presented to the Board in August 2015, at which time it was remanded for additional development. The required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran was discharged from active duty on April 14, 2001; no subsequent periods of qualifying active duty service are of record. 2. The Veteran's basic delimiting period for receiving Chapter 30 educational benefits (Montgomery GI Bill) expired on April 15, 2011. 3. The Veteran's application for extension of the delimiting date for Montgomery GI Bill benefits was received on December 3, 2012. CONCLUSION OF LAW The criteria for an extension of the delimiting date beyond April 15, 2011 for Chapter 30 educational benefits have not been met. 38 U.S.C.A. § 3031 (West 2014); 38 C.F.R. §§ 21.1033, 21.7050, 21.7051 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The U.S. 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). The applicable notification and assistance procedures for educational assistance claims 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. 38 C.F.R. §§ 21.103 l(b), 21.1032(d) (2015). Except under specified limited circumstances, VA will not provide basic educational assistance to a veteran or service member beyond 10 years of the date of the veteran's last discharge or release from a period of active duty of 90 days or more of continuous service. 38 U.S.C.A. § 3031 (West 2014); 38 C.F.R. § 21.7050 (2015). The law provides that an extended period of eligibility for Montgomery GI Bill benefits may be granted when it is determined that a veteran was prevented from initiating or completing the chosen program of education within the otherwise applicable eligibility period because of a physical or mental disability that did not result from the Veteran's willful misconduct. 38 USCA § 3031(d), 38 C.F.R. § 21.7051(a)(2). It must be clearly established by medical evidence that such a program of education was medically infeasible. Extension requests are subject to timeliness restrictions. 38 C.F.R. §§ 21.1033(c), 21.705l(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/her from beginning or resuming a chosen program of education. 38 C.F.R. §§ 21.1033(c), 21.7051(a). In the present case, the Veteran served on active duty from March 17, 1993, to April 14, 2001. She accordingly meets the threshold requirement under 38 C.F.R. § 21.7042 for eligibility to participate in the Montgomery GI Bill. Her delimiting date is therefore April 15, 2011, 10 years after discharge from service. 38 C.F.R. § 21.7050. The file does not show, and the Veteran has not asserted, any periods of qualifying active duty after April 2001 that might extend her delimiting date. While the Veteran stated in a December 2012 statement that she'd recently "applied/enlisted" in the Air National Guard, VA has found no evidence that she completed that enlistment, or served on any additional period of active duty after April 14, 2001. On January 26, 2010, the Veteran filed an application for Montgomery GI Bill benefits for the period from February 8, 2010, to April 16, 2010. Subsequent applications were received and approved for the period from April 12, 2010, to June 18, 2010, from July 12, 2010 to September 17, 2010, from October 11, 2010, to December 17, 2010, and from January 10, 2011, to March 18, 2011. In December 2012, the Veteran filed an application for an extension of the delimiting date for Montgomery GI Bill benefits. She cited in part medical complications beginning in January 2002 which prevented her from using her Montgomery GI Bill to begin or complete her course of study until 2010. This application for an extension was denied as untimely, and this appeal was initiated. The Veteran has asserted that she would have filed a timely request for an extension of the delimiting date but did not do so because she was unaware of the deadline, and that she was not provided pertinent information by VA in a timely manner. In statements and testimony she explained that she first sent requests to the GI Bill portal beginning in April 2011 and was initially informed there was no limitation to when to send a letter requesting an extension. The Board remanded the claim in 2015, in part, to afford the Veteran an opportunity to submit this correspondence. A review of the record does not reflect the April 2011 correspondence, but does include correspondence sent to the online portal dated July 2011 where the Veteran states I've sent at least two other question(s) asking the timeframe to submit paperwork extending my GI Bill. Is it from the DOS, approx. 120 days? 160 dates? 190 days? I have not received a reply. Presently it's been approx 90-days. I've searched the question of the timeframe and have not seen any reference or deadline of when it has to be done. Could it be submitted for the Fall 2011 (Aug, Sep, Oct)? The reply, also in July 2011 indicated the responder "cannot see your formal question." The response further indicated if the Veteran was asking about an extension of the delimiting date "the sooner you submit this request and supporting documents, the better." It provided some information as to what information should be sent on the application. A follow up question from the Veteran in August 2011 asked whether the request had to be formal or whether it could be taken form the medical records that she already sent. Another reply in August 2011 indicated it had to be formal. A third follow-up question from the Veteran requested a phone number to obtain further information as she was not completely clear on the process or what's required for the extension. A phone number was provided in another August 2011 response. Under 38 C.F.R. § 21.1029 the "date of claim" is the date on which a valid claim or application for educational assistance is considered to have been filed with VA, for purposes of determining the commencing date of an award of that educational assistance: (1) If an informal claim is filed and VA receives a formal claim within one year of the date VA requested it, or within such other period of time as provided by 38 C.F.R. § 21.1033, the date of claim, subject to the provisions of paragraph (b)(3) of this section, is the date VA received the informal claim; (2) If a formal claim is filed other than as described in paragraph (b)(1) of this section, the date of claim, subject to the provisions of paragraph (b)(3) of this section, is the date VA received the formal claim; (3) if a formal claim itself is abandoned and a new formal or informal claim is filed, the date of claim is as provided in paragraph (b)(1) or (b)(2) of this section, as appropriate. A claim is a "formal claim" when the claimant (or his authorized representative) files the claim with VA and (1) the claim is a claim for (i) educational assistance; (ii) an increase in educational assistance; or (iii) an extension of the eligibility period for receiving educational assistance; and (2) if there is a form (either paper or electronic) prescribed under this part, the claim is filed on that form. 38 C.F.R. § 21.1029(d). If a form (either paper or electronic) has been prescribed under this part to use in claiming the benefit sought, the term "informal claim" means any communication from an individual, or from an authorized representative or a Member of Congress on that individual's behalf that indicates a desire on the part of the individual to claim or to apply for VA-administered educational assistance or a claim from an individual or form an authorized representative on that individual's behalf for a benefit described in paragraph (d)(1)(i) of this section that is filed in a document other than in the prescribed form. 38 C.F.R. § 21.1029. Here, even if the Board construed the July 2011 correspondence as an informal claim, to preserve that as the date of claim the Veteran needed to file a formal claim within a year. 38 C.F.R. § 21.1029(b)(1). She did not do so in this case as the Formal claim was not received until December 2012. Arguably, upon receipt of an informal claim, VA is to supply the Veteran with the applicable form. See 38 C.F.R. § 21.1031(a). Nevertheless, under 38 C.F.R. § 21.1033(a), VA's failure to give a claimant any form, information concerning the right to file a claim, or notice of the time limit for filing will not extend the time periods allowed for these actions. While the Board is sympathetic to the Veteran's position, the applicable law and regulations are clear, and Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 USCA § 503; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). In this regard, the Board observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). Further, the United States Court of Appeals for Veterans Claims, citing to an opinion by the U.S. Supreme Court, has held that anyone dealing with the Federal Government is charged with knowledge of Federal statute and agency regulations. See Morris v. Derwinski, 1 Vet. App. 260, 265 (1991). Thus, while the Veteran may arguably have not been correctly informed of the delimiting date or provided the applicable forms prior to December 2012, when she filed her application for an extension, she had the ultimate responsibility to inform herself of the filing requirements and to abide by those requirements. The Veteran has also asserted that various medical disabilities prevented her from initiating or completing a program of education during the eligibility period. 38 C.F.R. § 21.7051 provides that an extension of the applicable delimiting period may be granted when, during the eligibility period, a physical or mental disability that did not result from the veteran's own willful misconduct prevented the veteran from beginning or completing a course of study. 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) (2015). Although the Veteran has various disabilities which have been acknowledged by VA, the evidence of record does not clearly establish that pursuing a program of education was medically infeasible. More importantly, in her December 2012 application for extension, she stated such impairment ended in "late 2010", allowing her to commence a course of study. She did in fact file several claims for Montgomery GI Bill benefits beginning in 2010, demonstrating that she was able to pursue a course of education at that time. As noted above, 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/her from beginning or resuming a chosen program of education. 38 C.F.R. §§ 21.1033(c), 21.7051(a). In the present case, any period of medical disability ended, by the Veteran's own admission, more than a year prior to the receipt of the December 2012 application for extension. Thus, such an application was untimely. In so deciding, the Board need make no finding regrading whether medical evidence has been presented establishing that a program of education was medically infeasible at any time during the applicable eligibility period. 38 C.F.R. § 21.7051(a)(2) (2015). Accordingly, as the evidence in this case clearly demonstrates that the Veteran did not file a request for extension within the requisite period, her request for extension of the delimiting date must be denied. As the disposition of this claim is based on the law, and not on the facts of the case, the claim must therefore be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to extension of educational assistance benefits pursuant to Chapter 30, Title 38, United States Code, Montgomery GI Bill is denied. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs