Citation Nr: 21062703 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 19-26 062A DATE: October 12, 2021 ORDER An extension of the delimiting date beyond February 1, 2020, for VA educational assistance benefits under Chapter 33, Title 38, United States Code (known as the Post-9/11 GI Bill), is denied. FINDING OF FACT 1. The Veteran was last separated from active duty service on March 28, 2003, after more than 90 days of continuous active duty service; her period of eligibility for Chapter 33 education benefits expired on March 28, 2018. 2. VA regulations permit extensions to the 15-year delimiting date only in limited circumstances, none of which are applicable here. CONCLUSION OF LAW The criteria for an extension of the delimiting date for Chapter 33 education benefits are not met. 38 U.S.C. §§ 3031, 3311, 3321; 38 C.F.R. §§ 21.9520, 21.9530, 21.9535. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from September 1999 to March 2003. This appeal before the Board of Veterans' Appeals (Board) arose from a March 2018 decision of a Department of Veterans Affairs (VA) Regional Office (RO) in which the RO denied an extension of the Veteran's delimiting date beyond March 28, 2018. The Veteran disagreed with that denial and subsequently perfected an appeal to the Board. In July 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Delimiting Date Extension The Post-9/11 GI Bill provides for VA educational assistance for members of the Armed Forces based on active duty service after September 10, 2001. 38 U.S.C. § 3311; 38 C.F.R. § 21.9520. A veteran is eligible for Chapter 33 education benefits if he served a minimum of 90 aggregate days on active duty after September 10, 2001, and he was separated from active duty service with an honorable discharge. See 38 C.F.R. §§ 21.9505, 21.9520. In the instant case, the Veteran's entitlement to Chapter 33 educational assistance benefits is not at issue, as entitlement to such has been established. A review of the record shows that in May 2010, the Veteran was issued a "Certificate of Eligibility" in which she was informed that she was entitled to receive 70 percent of the benefits payable. Although the May 2010 notification did not include information regarding the Veteran's delimiting date, subsequent letters informed her that she had until March 28, 2018, to use her benefits. In this regard, the Board notes that the law provides that in the case of a veteran whose last discharge or release from active duty was before January 1, 2013, the period of eligibility for educational assistance terminates 15 years from (i) the date of his/her last discharge or (ii) the date of his/her release from a period active duty of at least 90 continuous days (or 30 continuous days if the veteran is released for a service-connected disability). 38 U.S.C. § 3321; 38 C.F.R. § 21.9530. Here, the Veteran was discharged from service on March 28, 2003. Her period of eligibility for Chapter 33 educational assistance benefits thus expired on March 28, 2018. In February 2018, the Veteran requested an extension of her delimiting date, which request was denied by the RO the following month. In disagreeing with the RO's determination, the Veteran stated that she was unaware that she only 15 years to use her benefits. She also stated that although she had started her college courses in 2010, she had to stop taking classes when her company transferred her from Arizona to Mississippi in 2013. She also reported that she was caring for her two children and her sick mother, which prevented her from resuming college courses for several years. In support of her assertion, the Veteran submitted documentation showing that she sought leave under the Family Medical Leave Act in order to care for her mother and accompany her to medical appointments. Notably, VA will extend a veteran's period of eligibility if medical evidence clearly establishes that the veteran was prevented from initiating or completing his program of education because of a physical or mental disability that did not result from his own willful misconduct, and if the veteran applies for the extension within a specified time limit. 38 C.F.R. § 21.9535(a). VA will also grant an extension if the veteran was captured and forcibly detained by a foreign government or power and was hospitalized at a military, civilian or medical facility immediately thereafter. 38 C.F.R. § 21.9535(b). Similarly, the date that the period of eligibility begins to run may be delayed if the veteran's nature of discharge that previously disentitled him from benefits had changed or is the veteran was prevented from pursuing a program of education because he was acting as the primary provider of personal care services for a veteran. See 38 U.S.C. §§ 3031(b), (d), 3321(b). Although the period of eligibility for Post 9/11 GI Bill educational assistance benefits may be extended under certain circumstances, no such exception is applicable in this case. Indeed, the record does not show, and the Veteran does not assert, that he was detained by a foreign government or power after his release from active duty, 38 C.F.R. § 21.9535(b), or that the nature of her discharge previously disentitled him from benefits, 38 U.S.C. §§ 3031(b), 3321(b). The record also does not show, and the Veteran does not assert, that she was acting as the primary care provider of personal care services for a veteran. 38 U.S.C. §§ 3031(d), 3321(b). Rather, the Veteran has stated that she was unable to use her Post-9/11 GI Bill benefits in full prior to the delimiting date on account of needing to care for her ill mother. Although VA will extend a veteran's period of eligibility if medical evidence clearly establishes that the veteran was prevented from initiating or completing a program of education because of a physical or mental disability, 38 C.F.R. § 21.9535(a), there is no evidence in this case that the Veteran's own mental or physical disability prevented her from initiating or completing her program of education. Rather, it was the illness of her mother. While the Board is sympathetic to the Veteran's circumstances, the law does not provide for an extension of the 15-year eligibility period in cases such as this. Accordingly, because none of the limited circumstances allowing for an extension of the 15-year delimiting date are applicable here, the Board is unable to grant the benefits sought in this case. See 38 U.S.C. §§ 3031(b)-(d), 3321; 38 C.F.R. §§ 21.9530, 21.9535. Although the Board is sympathetic to the Veteran's position, and commends the Veteran on her educational pursuits, the applicable law and regulations are clear that except in specific circumstances not met here, the Veteran's period of eligibility for use of Chapter 33 educational assistance benefits expired on March 28, 2018. As the law and not the evidence is dispositive in this case, the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). In rendering the above determination, the Board is cognizant that the Harry W. Colmery Veterans Educational Assistance Act of 2017, Pub. L. 115-48 provides for the elimination of the 15-year delimiting date for Chapter 33 (Post-9/11 GI Bill) education benefits. However, that provision is only applicable to veterans whose service ended on or after January 1, 2013. As noted above, the Veteran's active duty service ended in March 2003. Thus, this provision is not applicable in this case. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Neilson, 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.