Citation Nr: 1815641 Decision Date: 03/16/18 Archive Date: 03/23/18 DOCKET NO. 13-33 265 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an extension of the appellant's delimiting date for Dependents Educational Assistance (DEA) benefits under Chapter 35, Title 38 of the United States Code. ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to April 1971. The appellant is the Veteran's spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 administrative decision and subsequent rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Board notes that a travel board hearing was scheduled in December 2017. The appellant did not appear, and has not requested that a new hearing be scheduled. Accordingly, the Board finds that the appellant's hearing request has been withdrawn. See 38 C.F.R. § 20.704(d) (2017). FINDINGS OF FACT 1. The appellant is the Veteran's spouse. 2. The Veteran was deemed to be totally and permanently disabled on August 28, 2002, and the Veteran was notified of this decision on September 14, 2002. 3. The Veteran became eligible for Chapter 35 DEA education benefits on September 14, 2002; therefore, the delimiting date for the appellant's spousal education benefits in this case is September 14, 2012. 4. The appellant has a mental or physical disability that 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 appellant's delimiting date for DEA spousal benefits under Chapter 35, Title 38 of the United States Code, have 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 The appellant asserts that she is entitled to an extension of the delimiting date for DEA spousal benefits due to a physical and mental disability in order to complete two more semesters of college. Basic eligibility for Chapter 35 benefits can be established in several ways, including being the spouse of a veteran who has a total disability permanent in nature resulting from a service-connected disability. See 38 U.S.C. § 3501(a) (1)(D)(i) (2012); 38 C.F.R. § 21.3021(a)(3)(i) (2017). The beginning date of eligibility for the spouse of a veteran with a permanent and total disability evaluation effective after November 30, 1968, is the effective date of the veteran's total and permanent rating, or the date of notification, whichever is more advantageous to the spouse. See 38 U.S.C. § 3512(b)(1) (2012); 38 C.F.R. § 21.3046(a) (2017). Here, the Veteran was assigned a total and permanent rating on August 28, 2002, and the Veteran was notified of this evaluation on September 14, 2002. As such, the beginning date of eligibility for the appellant's DEA benefits is September 14, 2002. Educational assistance expires 10 years after one of the following occurs: (1) the date on which the Secretary first finds the spouse from whom eligibility is derived has a service-connected total disability permanent in nature; (2) the date of death of the spouse from whom eligibility is derived who dies while a total disability evaluated as permanent in nature was in existence; or (3) the date on which the Secretary determines that the spouse from whom eligibility is derived died of a service-connected disability. See 38 U.S.C. § 3512(b)(1) (2012); 38 C.F.R. § 21.3046 (2017). In this case, the appellant's delimiting period ended on September 14, 2012 - 10 years after notice of the Veteran's permanent and total disability rating. However, the 10-year delimiting period may be extended if the eligible spouse: (1) applies for the extension within one year after the last date of the delimiting period, or the termination of the period of physical or mental disability; (2) "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 . . . willful misconduct;" (3) provides VA with any requested evidence tending to show that he/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. See 38 U.S.C. § 3512(b)(2) (2012); 38 C.F.R. §§ 21.1033, 21.3047(a)(i-iv) (2017). Based upon the evidence of record, the Board determines that the appellant is entitled to an extension for DEA benefits based upon a physical and mental disability. As a preliminary matter, the Board notes that the appellant applied for an extension in January 2013 - which was within a year of her delimiting date of September 14, 2012. Next, the medical evidence of record, including the credible statements from the appellant, indicate that she was unable to complete her chosen program of education prior to of September 14, 2012 - which she contends only requires two more semesters of course work to obtain a Bachelor's degree. Specifically, in February 2013, November 2013, and January 2014, the appellant's treating physicians opined that she was unable to attend college on a full-time basis during her initial period of eligibility due to multiple and severe medical conditions that included head trauma from a motorcycle accident, lumbar disc disease, a heart attack, hypertension, and a psychiatric disorder. Further, the evidence of record demonstrates that the appellant's medical conditions completely prevented her from even beginning her coursework prior to 2008. Moreover, given the numerous complications with the aforementioned medical disabilities, including increased risk for another heart attack due to stress from a full course load, the appellant has only been able to attend college on a part-time, one semester a year basis. As such, the Board finds that the evidence is at least in equipoise that the appellant was unable to complete her college program due to a mental and physical disability and therefore an extension for DEA spousal benefits is granted. ORDER Entitlement to an extension of the appellant's delimiting date for DEA spousal education benefits under Chapter 35, Title 38 of the United States Code, is granted. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs