Citation Nr: 20004550 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 15-33 755 DATE: January 21, 2020 ORDER Entitlement to an extension of the Appellant’s delimiting date for Dependents Educational Assistance (DEA) based on medical infeasibility, between January 15, 2012 and August 1, 2012, is denied. Entitlement to an extension of the Appellant’s delimiting date for DEA benefits based on medical infeasibility, between January 31, 2013 and June 18, 2013, is denied. Entitlement to an extension of the Appellant’s delimiting date for DEA benefits based on medical infeasibility, between June 19, 2013 and July 31, 2013, is granted. Entitlement to an extension of the Appellant’s delimiting date for DEA benefits based on medical infeasibility, between August 1, 2013 and December 5, 2013, is denied. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Appellant was prevented from initiating or completing a program of education between January 15, 2012 and August 1, 2012 due to her own physical or mental disability. 2. The weight of the evidence is against a finding that the Appellant was prevented from initiating or completing a program of education between January 31, 2013 and June 18, 2013 due to her own physical or mental disability. 3. The Appellant was prevented from initiating or completing a program of education between June 19, 2013 and July 31, 2013 due to physical disability. 4. The weight of the evidence is against a finding that the Appellant was prevented from initiating or completing a program of education between August 1, 2013 and December 5, 2013 due to her own physical or mental disability. CONCLUSIONS OF LAW 1. The criteria for an extension of the Appellant’s delimiting date for DEA benefits based on medical infeasibility, between January 15, 2012 and August 1, 2012, have not been met. 38 U.S.C. §§ 3501, 3512 (2012); 38 C.F.R. §§ 21.3046, 21.3047 (2018). 2. The criteria for an extension of the Appellant’s delimiting date for DEA benefits based on medical infeasibility, between January 31, 2013 and June 18, 2013, have not been met. 38 U.S.C. §§ 3501, 3512 (2012); 38 C.F.R. §§ 21.3046, 21.3047 (2018). 3. The criteria for an extension of the Appellant’s delimiting date for DEA benefits based on medical infeasibility, between June 19, 2013 and July 31, 2013, have been met. 38 U.S.C. §§ 3501, 3512 (2012); 38 C.F.R. §§ 21.3046, 21.3047 (2018). 4. The criteria for an extension of the Appellant’s delimiting date for DEA benefits based on medical infeasibility, between August 1, 2013 and December 5, 2013, have not been met. 38 U.S.C. §§ 3501, 3512 (2012); 38 C.F.R. §§ 21.3046, 21.3047 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran retired in August 1983 after more than 20 years of active duty service. The Appellant is the Veteran’s spouse. The Board notes that the although the Veteran and his service representative were at the Appellant’s January 31, 2019 hearing, the Appellant is not represented in this matter. The Appellant claimed that she should be granted an extension of her DEA delimiting date. She asserted that she was entitled to an extension based on the medical infeasibility of her attending school from January 15, 2012 to December 5, 2013. A January 2015 rating decision granted the Appellant an extension of her delimiting date, based on medical infeasibility, for the period from August 1, 2012 to January 31, 2013. The Appellant continued to appeal the denial of an extension of her delimiting date for the period prior to August 1, 2012 and the denial of an extension of her delimiting date for the period subsequent to January 31, 2013. 1. Entitlement to an extension of the Appellant’s delimiting date for DEA benefits based on medical infeasibility, between January 15, 2012 and August 1, 2012. The Appellant asserts that due to her own poor health, and due to the Veteran’s poor health, she is entitled to an extension of the delimiting date for her Chapter 35 DEA benefits based on her inability to attend school between January 15, 2012 and August 1, 2012. The Appellant became eligible for Chapter 35 DEA spousal education benefits on October 15, 2002, the date that the Veteran was deemed totally disabled. She applied for DEA benefits in 2011 and was issued a certificate of eligibility in March 2011. The Appellant chose January 16, 2004 to be the beginning date of her benefits. Consequently, she was entitled to use her DEA educational benefits until January 2014. Unless extended, the period of eligibility cannot exceed 10 years. 38 C.F.R. § 21.3046(c). 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 she was prevented from initiating or completing the program because of a physical or mental disability; 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); 38 C.F.R. § 21.3047(a)(i-iv). The extension period shall be for the length of time that the individual was prevented from initiating or completing her chosen program of education. See 38 C.F.R. § 21.3047(c). Also, it must be clearly established by medical evidence that such program of education was medically infeasible. See 38 C.F.R. § 21.3047(a)(2)(i). The Appellant asserts that she is entitled to an extension of the delimiting date for her Chapter 35 DEA benefits based on her being medically unable to attend school between January 15, 2012 and August 1, 2012. She reported that she fell through the floor of a mobile home in early 2012. She said that the injury caused some internal damage but did not require surgery. On her July 2013 substantive appeal the Appellant asserted that during the January 15, 2012 to August 1, 2012 period she was also unable to attend classes because her husband was very ill, and she had to take care of him. An August 2014 letter from a physician states that the Veteran had been sick, with prolonged hospitalizations, from August 2012 to January 2013, and that the Appellant had attended to the Veteran during that time. A September 2014 letter from the Appellant’s physician states that the Appellant was treated for diverticulitis for several weeks in October 2012, and that she tore ligaments in her right knee in October 2012. The Board is unable to grant the Appellant an extension based on her assertions that she had to attend to her ill husband between January 15, 2012 and August 1, 2012. The provisions for an extension under § 21.3047 clearly refer to the medical condition of the spouse, not the Veteran. This is evident when noting that VA must consider whether the program of education itself was “medically infeasible.” 38 C.F.R. § 21.3047(2)(i). Since it is the eligible spouse attending the program, a determination regarding whether the program is “medically infeasible” clearly pertains to the spouse, not to the Veteran. Thus, an extension based on the Appellant’s attending to her husband is not warranted. The Board is also unable to grant the Appellant an extension based on her assertions that it was medically infeasible for her to continue her program of education between January 15, 2012 and August 1, 2012 due to her own ill health. The Board has carefully reviewed the medical evidence of record and it fails to establish that the Appellant’s program of education was medically infeasible during that time period due to her health. The Board has considered her reports that she fell through a floor and injured herself during that time. However, the September 2014 letter from her physician indicates that the floor incident and an episode of diverticulitis both occurred in October 2012, not between January 15, 2012 and August 1, 2012. The Appellant’s knee injury from falling through the floor, and her diverticulitis episode, occurred after the August 1, 2012 and are not relevant in considering the Appellant’s condition between January 15, 2012 and August 1, 2012. While the Board is sympathetic to the Appellant’s position and the contentions she has advanced in support of her claim, the weight of the evidence is against finding that it was not medically infeasible for her to initiate or complete a program of education between January 15, 2012 and August 1, 2012 due to her own physical or mental disability. Consequently, the Appellant’s claim to extend her delimiting date for DEA benefits under Chapter 35 beyond the current delimiting date due to medical infeasibility between January 15, 2012 and August 1, 2012 must be denied. 2. Entitlement to an extension of the Appellant’s delimiting date for DEA benefits based on medical infeasibility, between June 19, 2013 and July 31, 2013. The Appellant reports that she was hospitalized overnight in June 2013 due to a chemical burn. She explained that the radiator of her pickup truck blew up and injured her. She asserted that she had 2nd and 3rd degree burns across her midriff, from her breast to her waist. At her hearing the Appellant testified that the burns had to heal from the outside in. She said that it took six weeks to a couple of months for her burns to totally heal. The Board finds that the Appellant is entitled to a six-week extension of the delimiting date of her DEA benefits due to medical infeasibility, between June 19, 2013 and July 31, 2013. The record reveals that the Appellant was badly burnt on June 19, 2013 when the radiator of her car exploded on her. The Appellant was hospitalized following the injury. Her June 20, 2013 hospital discharge assessment report notes that her grandson and his wife were in town and could stay with her. They stated that that if needed they could stay longer to care for her at home. It was further noted that home health services might be needed to help with wound care. In a September 2014 letter the Appellant’s physician noted that the Appellant was hospitalized for thermal second degree burns to the abdomen with complications that extended the healing period to over six weeks. Affording all doubt in favor of the Appellant, the Board finds that it was medically infeasible for the Appellant to initiate or complete her chosen program of education for six weeks due to her chemical burns as contemplated by 38 C.F.R. § 21.3047. Accordingly, an extension of the Appellant’s delimiting date for DEA benefits based on medical infeasibility, between June 19, 2013 and July 31, 2013, is warranted. See 38 C.F.R. § 21.3047(a)(2)(i). 3. Entitlement to an extension of the Appellant’s delimiting date for DEA benefits based on medical infeasibility, between January 31, 2013 and June 18, 2013, and between August 1, 2013 and December 5, 2013. The Appellant also asserts that she is entitled to an extension of the delimiting date for her Chapter 35 DEA benefits based on her being medically unable to attend school between January 31, 2013 and June 18, 2013, and between August 1, 2013 and December 5, 2013. She reported that she took a half load of classes in the Fall 2013 semester because she was trying to recover from the stress and damage her body suffered. The Appellant submitted a college transcript showing that she took two courses during the Fall 2013 semester and that she received “A” grades in both courses. The Appellant testified that she underwent open-heart surgery in July of 2015 and then had further heart surgery in August 2015. She noted that her heart problems did not just happen overnight. She asserted that her shortness of breath from her heart condition, her burn injuries and her diverticulosis all made it difficult for her to attend school prior ot December 5, 2013. The Appellant also reported that she fell in a parking lot and had micro tears in her right knee, which caused her a lot of trouble walking to class. She submitted medical billing information that shows that she was seen by her doctor for her knee on multiple occasions between March 2013 and May 2013. She also submitted a July 2015 statement from a neighbor in support of her claim. The neighbor wrote that from January 15, 2013 to December 15, 2013 he visited the Veteran often and noted that the Veteran needed to have someone with him at all times. He stated that the Appellant had to be up all hours of the day and night to care for the Veteran and keep their house operating. The Board finds that this statement has no probative value. As noted previously, the Appellant is not entitled to an extension of her DEA benefits based on the ill health of the Veteran and her need to attend to him. Additionally, the record does not clearly indicate that it was medically infeasible for the Appellant to continue her program of education between January 31, 2013 and June 18, 2013, or between August 1, 2013 and December 5, 2013, due to her own ill health. Although the record indicates that the Appellant received treatment for her right knee on four occasions from March 2013 through May 2013, there are no medical records clearly indicating that the Appellant was unable to attend school due to her right knee problem. Furthermore, the record shows that following the June 2013 burn injury the Appellant attended school half time in Fall 2013 and did well. Although she maintains that she was only able to take a half load of courses due to her physical problems, the fact remains that she completed a semester of school, which commenced more than six weeks after the chemical burn injuries. Considering the Appellant’s successful half time completion of the Fall semester, the Board is unable to find that during the Fall 2013 semester it was medically infeasible for the Appellant to initiate or complete a program of education during that period. The Board recognizes that the Appellant had physical disability between January 31, 2013 and June 18, 2013, and between August 1, 2013 and December 5, 2013. However, the evidence of record fails to show that the Appellant’s program of education was medically infeasible during those periods due to her health. The medical evidence between January 31, 2013 and June 18, 2013, and between August 1, 2013 and December 5, 2013, does not clearly establish that her program of education was medically infeasible. As noted above, the Appellant’s successful completion of a semester of school during the Fall semester weighs against her claim that it was medical infeasible for her to continue her education between August 1, 2013 and December 5, 2013. Based on the above, the Board finds that the Appellant is not entitled to an extension of her delimiting date for DEA benefits between January 31, 2013 and June 18, 2013, and that she is not entitled to an extension of her delimiting date for DEA benefits between August 1, 2013 and December 5, 2013. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Jones, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.