Citation Nr: 20021970 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 17-04 579A DATE: March 30, 2020 ORDER Entitlement to an extension of the delimiting date for Dependents Educational Assistance (DEA) benefits under Chapter 35, Title 38 of the United States Code (Chapter 35) beyond September 5, 2013, is denied. FINDING OF FACT The competent and credible evidence of record does not reflect that a physical and/or mental disability alone prevented the appellant from initiating or completing her chosen program of education during the eligibility period sufficient to extend the delimiting date beyond September 5, 2013, for DEA benefits. CONCLUSION OF LAW The criteria for entitlement to an extension of the delimiting date for DEA benefits under Chapter 35 beyond September 5, 2013, have not been met. 38 U.S.C. §§ 3501, 3512, 5103A, 5107; 38 C.F.R. §§ 21.3046, 21.3047. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from November 1965 to November 1967. The appellant is the Veteran’s spouse. The Veteran and the appellant testified before the undersigned Veterans Law Judge (VLJ) via videoconference in February 2020. A transcript of the hearing is included in the claims file. The appellant requests an extension of the eligibility period to use her DEA benefits beyond September 5, 2013, because she was unable to use such benefits during the preceding 10-year period. She asserts that she was prevented from completing her chosen program of education during this period because she provided care and support to the Veteran, who has had a permanent and total service-connected disability during this time. 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); 38 C.F.R. § 21.3021(a)(3)(i). 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); 38 C.F.R. § 21.3046(a). 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); 38 C.F.R. § 21.3021(a). 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/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); 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). Moreover, an eligible spouse who is disabled for a period of 30 days or less will not be considered as having been prevented from initiating or completing a chosen program, unless the evidence establishes that the eligible spouse was prevented from enrolling or reenrolling in the chosen program of education, or was forced to discontinue attendance, because of the short disability. 38 C.F.R. § 21.3047(a)(2)(ii). The facts are not in dispute. A September 2004 rating decision granted a total disability rating based on individual unemployability (TDIU) due to the Veteran’s service-connected undifferentiated somatoform disorder with irritable bowel syndrome (IBS) with posttraumatic stress disorder (PTSD). The rating decision further noted that the Veteran had a total disability, which was permanent in nature, resulting from a service-connected disability since September 5, 2003. The rating decision also granted entitlement to DEA benefits from September 5, 2003. The Veteran was notified of this decision by a September 28, 2004, letter. After the appellant applied for DEA benefits for the first time in October 2004, the AOJ sent her a letter informing her that she may choose the commencing date of her eligibility to receive DEA benefits between September 5, 2003, which was the date that the Veteran became permanently and totally disabled; September 28, 2004, which was the date of the notification that the Veteran had a permanent and total service-connected disability; or, any date between those two dates. In a November 2004 written statement, the appellant chose September 5, 2003, as the beginning date for her DEA benefits. The record also shows that the appellant was enrolled in a course of study to receive a master’s degree during the 10-year period of eligibility but that she discontinued pursuit of her educational goals in 2007. During the February 2020 Board hearing, as well as in numerous statements throughout the appeal, the appellant has not asserted that she, personally, had a physical or mental disability that prevented her from initiating or completing her chosen course of study. Rather, as noted in the May 2015 Notice of Disagreement (NOD), January 2017 Substantive Appeal to the Board (VA Form 9), and the February 2020 Board hearing, the appellant contended that she had to stop attending classes because the Veteran’s symptoms from his service-connected disability required her to take on extra employment to support her family and to provide care to the Veteran. Specifically, she and the Veteran testified that she was the primary caregiver to the Veteran from 2007 until 2014, at which time their son provided additional care and support to the Veteran. The appellant testified that she was employed in various education roles, including as a special education schoolteacher, since 2002. She stated that she re-enrolled in school to attain a master’s degree in order to receive a higher salary through a certificate program for a learning consultant. The appellant’s attorney made very similar contentions in a February 2020 statement. He acknowledges that a typical request for an extension of the delimiting date by a spouse is an extension due to the physical or mental disability of a spouse. However, he maintained that the circumstances of the appellant’s case merited an extension. The attorney noted that the appellant could not pursue her educational goals because she was preoccupied being a primary provider and caregiver to the Veteran from 2004 until 2014. In support of this contention, the attorney refenced a January 2016 letter from Dr. Alan Burke, who is the Veteran’s doctor. Dr. Burke noted that when the Veteran’s PTSD symptoms get worse, they may last for months and interfere with his functioning as an independent adult. This doctor noted that the appellant was put in a position to take sole caregiver responsibility for her husband’s disability care, which left her no choice but to put her own education on hold while taking care of the Veteran. Although the Veteran and appellant were unable to hire outside support to take care of the Veteran, the doctor observed that their son eventually moved into their household and provided care for the Veteran, which in turn, allowed the appellant to continue to pursue her educational goals. The doctor noted that the appellant has been the Veteran’s caregiver from September 1, 2006, to June 20, 2015. In the February 2020 statement, the appellant’s attorney also asserted that the AOJ mistakenly selected September 5, 2003, as opposed to September 28, 2004, as the commencement a date for the start of DEA benefits because the later date would have been more advantageous to the appellant. The Board notes, however, that the appellant chose the September 5, 2003, date as the commencement of the eligibility period for her DEA benefits in a November 2004 statement. The commencement date cannot be changed once the appellant chose it. See 38 C.F.R. § 21.3046(a)(2)(iv). Given this evidence, the Board finds that the appellant has not provided requested evidence sufficient to show that she had a physical or mental disability that prevented her from initiating or completing a chosen program of eduction prior to the September 5, 2013, delimiting date for use of DEA benefits. Notably, for an extension to be granted, the burden is on the claimant to provide any requested evidence tending to show that the claimant was prevented from initiating or completing the chosen program of education within the otherwise applicable period of eligibility because of a physical or mental disability. 38 C.F.R. § 21.3047(a)(1)(iii). The appellant does not allege, and the record does not suggest, that she had a physical or mental disability that prevented her from initiating or completing a chosen program of education prior to the expiration of the 10-year eligibility period to use the DEA benefits. Rather, she asserts that she was prevented from completing her educational goals during this time period because of the Veteran’s service-connected disability. The Board acknowledges the contentions made by the appellant, the Veteran, and their attorney, as well as the evidence of record that shows the severity of the Veteran’s symptoms from his service-connected disability. The Board finds it a testament to the appellant’s character and ability that she was able to pursue full-time employment and provide financial, personal, and medical care to the Veteran in light of these circumstances. Her actions and dedication to the Veteran are laudable. However, the weight of the evidence does not show that she had a physical or mental disability that prevented her from initiating or pursuing her education goals. Overall, the record does not reflect, and the appellant has not asserted, that any such disability of the appellant alone precluded pursuit of her chosen program of study prior to September 5, 2013. Although the Board is sympathetic to the appellant’s contentions, it is bound by applicable law and regulations when determining a claim for VA benefits. Here, the regulatory criteria governing eligibility for the extension of the delimiting date for DEA benefits under Chapter 35 are specific, and the Board is bound by them. Pursuant to these criteria, there is no basis upon which to grant an extension of the delimiting date beyond September 5, 2013. Thus, the Board finds that the delimiting date for DEA benefits under Chapter 35 cannot be extended beyond this 10-year eligibility period as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Where the law, rather than the facts, is dispositive, the benefit of the doubt provisions as set forth in 38 U.S.C. § 5107(b) do not apply. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hodzic, 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.