Citation Nr: 1800662	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  14-23 697	)	DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to an extension of the delimiting date for Dependents' Educational Assistance benefits under Chapter 35, Title 38, of the United States Code, beyond December 12, 2013.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

Appellant and the Veteran


ATTORNEY FOR THE BOARD

Scott Shoreman, Counsel


INTRODUCTION

The Veteran had active service from October 1977 to September 1981.  The Appellant is his spouse.

This matter comes before the Board of Veterans' Appeals (Board) from an April 2014 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

In April 2017 the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing.  A transcript is of record.


FINDINGS OF FACT

1.  The Appellant and the Veteran were married on October 3, 2003.

2.  The Veteran was totally disabled at the time of his marriage to the Appellant.

3.  The Appellant was eligible for Dependents' Educational Assistance benefits as of the date of marriage with a delimiting date of October 3, 2013.

4.  The delimiting date was extended through December 12, 2013, based on the end date of the term that the Appellant was in as of October 3, 2013.

5.  The Appellant has not demonstrated that she had a mental or physical disability with prevented her from initiating or completing her chosen program of education during her eligibility period.


CONCLUSION OF LAW

The criteria for entitlement to an extension of the delimiting date beyond December 12, 2013, for Dependents' Educational Assistance benefits under the provisions of Chapter 35, Title 38, United States Code, have not been met.  38 U.S.C. §§ 3501, 3512, 5103A, 5107 (2012); 38 C.F.R. §§ 21.3046, 21.3047 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duty to Notify and Assist

VA educational programs contain their own provisions addressing VA notification and assistance duties.  See 38 C.F.R. §§ 21.1031, 21.1032 (2017).  If a claim for educational assistance cannot be substantiated, VA will notify the claimant of the evidence and information necessary to substantiate the claim, which information and evidence the claimant is to provide, and which information VA will try to obtain.  38 C.F.R. § 21.1031(b).  The duty to notify was met in an April 2014 letter to the Appellant.  

VA has also complied with its duty to assist.  See 38 C.F.R. § 21.1032.  There are not any records identified by the Appellant that have not been obtained.  The Appellant has not made the Board aware of additional evidence that is needed to substantiate the claim.  Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Appellant's claim, and no further assistance to develop evidence is required.  
 
II.  Extension of Delimiting Date

The Appellant seeks entitlement to an extension of the delimiting date for Dependents' Educational Assistance benefits due to not being aware of the benefits at the time of her marriage to the Veteran and that caring for him prevented her from attending school earlier during her eligibility period.

The Appellant's eligibility for Dependents' Educational Assistance benefits is derived from her status as a spouse of a permanently and totally disabled Veteran. 38 U.S.C. § 3501(a)(1)(D) (2012); 38 C.F.R. § 21.3021(a)(3)(i) (2017).  The beginning date of eligibility for Dependents' Educational Assistance benefits for a spouse of a veteran with a permanent and total disability evaluation effective after November 30, 1968, is the effective date of the Veteran's permanent and total disability evaluation or the date of notification of such evaluation, whichever is more advantageous to the spouse, if the spouse has not chosen another date between either of these two dates which has been approved by the Secretary.  38 U.S.C. § 3512(b)(1) (2012); 38 C.F.R. § 21.3046(a)(2)(iii) (2017).  The Appellant and the Veteran got married on October 3, 2003.  At the time of their marriage, a permanent and total disability evaluation was in effect for the Veteran.  Therefore, the Appellant's beginning date of eligibility is October 3, 2003, the date of her marriage to the Veteran.  See id.

Educational assistance shall not exceed 10 years after one of the following last occurs: (i) The date on which the Secretary first finds the spouse from whom eligibility is derived has a service-connected total disability permanent in nature; (ii) The date on which the Secretary determines the spouse from whom eligibility is derived died of a service-connected disability.  38 U.S.C. § 3512(b)(1)(B)(i)(ii) (2012).  Additionally, spouses may be entitled to a 20-year period of eligibility if a veteran's disability was determined to be permanent and total in nature no later than three years after the Veteran's discharge from service.  38 U.S.C. § 3512(b)(1)(D) (2012).  The Veteran's active service ended in September 1981 and he was found totally disabled as of January 1986.  Therefore, the requirements for the 20-year period are not met in this case.  See id.  Finally, if VA made a determination of eligibility for a spouse before December 27, 2001, the eligibility period has no ending date unless the spouse changes his or her program of education.  See 38 C.F.R. § 21.3046(c)(1)(ii) (2017).  The determination of eligibility for the Appellant was after December 27, 2001, and therefore this provision is not applicable.

The period of eligibility for Dependents' Educational Assistance benefits can be extended only under certain circumstances.  The period can be extended pursuant to 38 C.F.R. § 21.3046(c)(3), which provides for extensions when the spouse during the eligibility period is ordered to certain types of active duty (e.g., full time National Guard duty).  This provision is not applicable herein.

The 10-year delimiting period may be extended if the eligible spouse or surviving spouse: (1) applies for the extension within the appropriate time limit; (2) "[w]as 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 . . . willful misconduct;" (3) provides VA with any requested evidence tending to show that he or she was prevented from initiating or completing the program because of a physical or mental disability that did not result from the willful misconduct of the eligible spouse; and (4) is otherwise eligible for payment of educational assistance for the training pursuant to Chapter 35.  38 C.F.R. § 21.3047 (2017); see 38 U.S.C. § 3512(b)(2) (2012).  It must be clearly established by medical evidence that a program of education was medically infeasible.  38 C.F.R. § 21.3047(a)(2)(i). 

The Appellant has testified at the April 2017 Board hearing that she did not seek to use Dependents' Educational Assistance benefits sooner because she was not aware of them.  Furthermore, she was caring for the Veteran due to complications from his glaucoma and mood disorder, and they had children she was caring for at that time.

However, the Board concludes that under the applicable law, the Appellant is not entitled to an extension of the delimiting date for Dependents' Educational Assistance benefits.  While the Board is sympathetic to the Appellant, the record does not reflect that she had a physical or mental disability that prevented her from using the benefits prior to the December 12, 2013 delimiting date.  Therefore, the delimitating date may not be extended due the Veteran's illness.  See C.F.R. § 21.3047.

The Board is constrained to follow the specific provisions of law regarding the circumstances in which the delimiting date for Dependents' Educational Assistance benefits may be extended, and there is nothing in the record to show that any apply in this case.  Consequently, the Board must find that there is no legal authority to extend the Appellant's delimiting date for Dependents' Educational Assistance benefits under Chapter 35 beyond the current delimiting date.  Where the law and not the evidence is dispositive of the issue before the Board, the claim must be denied because of the absence of legal merit or the lack of entitlement under the law.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).


ORDER

Entitlement to an extension of the delimiting date for Dependents' Educational Assistance benefits under Chapter 35, Title 38, of the United States Code, beyond December 12, 2013 is denied.


____________________________________________
Michael J. Skaltsounis
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs