Citation Nr: 18112876 Decision Date: 06/21/18 Archive Date: 06/20/18 DOCKET NO. 14-43 899 DATE: June 21, 2018 ORDER The claim of 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 is denied. FINDINGS OF FACT 1. The appellant became eligible for Chapter 35 DEA spousal education benefits on August 23, 2002, the date that VA informed the Veteran that he was permanently and totally disabled; or September 1, 2002, the date that the Veteran became permanently and totally disabled; or any date between those two dates. VA notified the appellant of this information in an award letter. This information was restated upon reimbursement from the Veteran’s Graduate Record Exam (GRE) request fulfillment, dated March 28, 2017. 2. The most advantageous date of eligibility to the Appellant in this case is September 1, 2002, the date that the Veteran became permanently and totally disabled. Therefore, the delimiting date in this case is September 1, 2012. 3. The appellant has not demonstrated that she had a mental or physical disability which 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 benefits under Chapter 35, Title 38 of the 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 FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Army from February 1968 to September 1975. The Veteran is a Vietnam Era Veteran. The appellant and the Veteran were legally married in June 1992. This matter comes before the Board of Veterans’ Appeals on appeal from a July 2014 letter of determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied eligibility for an extension of the delimiting date for DEA benefits for the appellant. The appellant timely appealed that decision. The Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ), other than the undersigned, in November 2015. A transcript of the hearing is associated with the claims file. In January 2017, the appellant was notified by VA that the VLJ who presided over her hearing was no longer employed by the Board. She was given the opportunity to request another hearing before a different VLJ. The appellant was afforded 30 days to respond from the date of the letter and notified that failure to respond would be construed as declining another hearing. To date, no response has been received by the appellant, it has been greater than 30 days since the letter was sent, and, therefore, this case will be considered based upon the evidence of record. This case was previously before the Board in July 2016. In July 2016, the case was remanded to obtain outstanding private treatment record, as identified by the appellant and the Veteran. The appellant and her representative were to be notified if the records were unable to be obtained. If the outcome of the case remained unfavorable, VA was to provide the appellant and her representative with a supplemental statement of the case. The case has been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In July 2016, VA sent the appellant form VA 21-4142 to identify and release VA to obtain outstanding medical records from the identified providers. VA made multiple attempts to obtain these records, and the appellant was notified that the records could not be obtained. See Notification Letter, dated August 2016. In October 2016, the appellant and her representative were provided a supplemental statement of the case concerning the negative outcome of the reconsideration of the case. As such, the Board finds that there has been substantial compliance with the Board directives of the July 2016 Board Remand. Id. The appellant, via her representative, has waived consideration by the Agency of Original Jurisdiction (AOJ) of any evidence submitted into the appellate record after certification. As such, this case is properly before the Board and will be decided based upon all of the evidence of record. VA has a duty to notify and assist the Veteran in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 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 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 disability 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). Educational assistance expires 10 years after one of the following occurs: (1) The date on which the Secretary first finds that spouse from whom eligibility is derived has a service-connected total disability permanent in nature; (2) the date of the 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. § 21.3021(a) (2017). However, the 10-year delimiting period may be extended if the eligible spouse: (1) applies for the extension within the appropriate time limit; (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 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. See 38 U.S.C. § 3512(b)(2) (2012); 38 C.F.R. § 21.3047(a)(i-iv) (2017). The extension period shall be for the length of time that the individual was prevented from initiating or completing her chosen program of education. 38 C.F.R. § 21.3047(c) (2017). Also, it must be clearly established by medical evidence that such a program of education medically infeasible. See 38 C.F.R. § 21.3047(a)(2)(i) (2017). The appellant is currently seeking an extension of the delimiting date for her Chapter 35 DEA benefits. The appellant asserts that she was unable to initiate her education within the applicable eligibility period because of a mental disability that did not result from her willful misconduct. See 38 U.S.C. § 3512(b)(2) (2012); 38 C.F.R. § 21.3047(a)(i-iv) (2017). However, as outlined below, the evidence is against finding that the appellant is entitled to an extension of the delimiting date due to illness. The appellant concedes that she did not utilize her benefits within the 10-year delimiting period. See Communication, dated July 2014. She stated that her mental health disabilities prevented her from attending her educational program within the allotted time. Id. In October 2000, the appellant was the subject of an emergency and apprehension order and warrant. Private treatment records show evidence that the appellant had an inpatient psychiatric admission for five days that month. In a March 2007 communication, VA sent notification to the appellant that she would be reimbursed for her February 2007 GRE. She was informed, again, that her eligibility went until September 1, 2012. In the November 2015 hearing, the Veteran testified that the appellant attempted suicide in either 2001 or 2002. He further stated that the appellant was discharged from the hospital after five days and that the appellant worsened after that. However, the Veteran stated that the appellant improved through multiple activities with her church and support system. The appellant and the Veteran identified numerous healthcare providers that provided treatment to the appellant. However, VA was unable to obtain medical evidence from these providers due to the length of time between treatment and request of the records. See Notification Letter, dated August 2016. Based upon the evidence above, the Board finds that the evidence is against the finding that the appellant should be awarded and extension of her delimiting period for DEA benefits. Notably, the record is silent for objective medical evidence that the appellant was unable to initiate or complete the chosen program within the applicable eligibility period because of a mental or physical disability that did not result from willful misconduct. There is no medical evidence of treatment for either a physical or mental disability within the delimiting time period. The Board further notes that the appellant took the GRE in February 2007, indicating the ability to at least perform testing skills. The Board has considered the Court Order from the State of Texas and corresponding hospitalization evidence, but notes that these were from October 2000, prior to the original date of eligibility for DEA benefits. As such, this evidence is afforded limited probative weight. Additionally, the Board has considered the statements of the appellant and the November 2015 testimony of the Veteran. The appellant stated in a letter to VA that she was unable to attend school within the delimiting period due to her health condition. See Communication, dated July 2014. She further asserted, on her October 2014 Form 9, that, had she been able to attend prior to the start date, she would have. He testified that the appellant attempted suicide in 2001 and 2002. He testified that she was hospitalized for several days and that things “came to a head” after she was released. The appellant and the Veteran are competent to testify to their impressions of the appellant’s symptomatology and their recollection as to the series of events and the timeline thereof. See Barr v. Nicholson, 21 Vet. App. 303 (2007). There is no evidence that the appellant and the Veteran are not credible. However, neither the appellant nor the Veteran have demonstrated the requisite medical or mental health expertise to opine as to the manifestations or clinical and occupational severity of the appellant’s mental health. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Veteran did not specify the exact dates that the appellant was unable to initiate or complete the chosen educational program. The Veteran testified that the appellant was hospitalized in either 2001 or 2002, either before or shortly after the date that the appellant became eligible for DEA benefits. The Veteran did not state that the appellant was unable to initiate or complete her educational program throughout the delimiting period. Moreover, the evidence demonstrates that the appellant could perform some educational work, as she took the GRE in February 2007, which was within the delimiting period. In light of the lack of expertise to opine as to specific educational and occupational severity of the appellant’s mental health disorders, and the presence of contradictory evidence, the Board affords the statements of the appellant and the Veteran limited probative weight. As the record is void of evidence that demonstrates that the appellant was unable to initiate or complete an education program within the 10-year delimiting period due to a physical or mental disability, the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is inapplicable as to that period. 38 C.F.R. § 4.3 (2017). For these reasons, the claim is denied. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. E. Trotter, Associate Counsel