Citation Nr: 21069655 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 16-19 122A DATE: November 19, 2021 REMANDED The claim of entitlement to an extension of the delimiting date beyond January 25, 2011, for VA educational assistance benefits under Chapter 30, Title 38, United States Code (Montgomery GI Bill), to include the threshold issue of whether the Veteran's extension request was timely filed, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1997 to January 2001. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2014 determination by the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's request for an extension of the delimiting date for his Chapter 30 benefits. In August 2018, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In February 2019 and April 2020, the Board remanded this case to the agency of original jurisdiction (AOJ) for additional evidentiary and due process development. The AOJ has substantially complied with the Board's February 2019 and April 2020 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In October 2020, the Board denied the Veteran's claim for an extension of the delimiting date beyond January 25, 2011 for Chapter 30 education benefits. The Veteran appealed this determination to the Court of Appeals for Veterans Claims (Court). In an order dated in July 2021, the Court granted a Joint Motion for Remand (JMR) filed by the parties vacating the Board's October 2020 decision and remanding the matter back to the Board. The matter is once again before the Board. The law provides for a ten-year period of eligibility during which an individual may use his or her entitlement to educational assistance benefits; that period begins on the date of a veteran's last discharge from active duty. 38 U.S.C. § 3031 (a); 38 C.F.R. § 21.7050 (a). Regulations allow for an extension of the 10-year delimiting period of eligibility under the Montgomery GI Bill if the Veteran applies for an extension within one year of the time when the original eligibility ended or within one year of the time when a physical or mental disability no longer prevented him or her from beginning or resuming a program of education. 38 C.F.R. §§ 21.1033 (c), 21.7051(a)(1). Here, the Veteran was given a delimiting date of January 25, 2011 to use his Chapter 30 benefits which is 10 years from the date of his service discharge. 38 U.S.C. § 3031 (a); 38 C.F.R. § 21.7050 (a). He asserts that he was unable to use the benefits in a timely manner due to mental disability. Records show that he was enrolled in a program to become a medical assistant from January 2006 to November 2007, and that he withdrew from a different program for undergraduate general studies in 2009. He reported in a May 2016 affidavit that he was not able to continue his studies in 2009 because of stress and anxiety. VA examination and treatment records reflect diagnoses of anxiety disorder and alcohol use disorder, and the Veteran dates his alcohol use back to service. Notably, the provisions under 38 C.F.R. § 21.7050 (a) provide that the claimed physical or mental disability must not be the result of willful misconduct. However, they also provide that the disabling effects of chronic alcoholism is not considered to be the result of willful misconduct. The parties noted in the JMR that it was unclear whether the Board had complied with the provisions of 38 C.F.R. § 21.7051(a) when it rendered its October 2020 decision. The parties explained that while the Board found that the evidence did not show that a physical or mental disability prevented the Veteran from beginning or resuming a chosen program of education from January 25, 2012 (one year after the original eligibility period ended) to March 5, 2014 (the date that the Veteran filed the extension request), it failed to make any findings of fact as to when the Veteran was prevented from initiating or completing his chosen program of education due to his disability. The parties also noted that consideration should be given to obtaining a VA medical opinion as part of VA's statutory duty to assist. 38 U.S.C. § 5103(A)(d). In view of the foregoing, the Board finds that additional development is necessary to determine whether it was medically infeasible for the Veteran to pursue a chosen program of education due to mental disability and, if so, the date that such disability prevented him from initiating or completing his chosen program of education and the date that his disability no longer prevented him from beginning or resuming a chosen program of education. Such development includes obtaining any outstanding treatment records that relate to the Veteran's psychiatric symptoms prior to when he sought VA psychiatric treatment in February 2013. Notably, the Veteran reported experiencing psychiatric symptoms while he was incarcerated. In this regard, the evidence shows that he was incarcerated for eight months in 2010 or 2011 and 12 months beginning in February 2012. Accordingly, VA should request the Veteran's medical records from the penal institutions and as well as any pertinent treatment records that he identifies. 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159. The matters are REMANDED for the following action: 1. Ask the Veteran to identify any outstanding private treatment records that pertain to his psychiatric disabilities. A remand is required to allow VA to obtain authorization and request these records. 2. After obtaining proper authorization from the Veteran, request his treatment records from the penal institutions where he was incarcerated for eight months in 2010 or 2011 and 12 months starting in February 2012. 3. Thereafter, obtain a medical opinion from an appropriate clinician based on the examiner's review of the Veteran's claims file. Ask the examiner to offer an opinion as to whether the Veteran was prevented from initiating or completing his chosen program of education due to mental disability, diagnosed as anxiety disorder and alcohol use disorder. That is, whether such disability or disabilities made it medically infeasible for him to pursue his chosen program of education and, if so, the date that such disability prevented him from initiating or completing his chosen program of education and the date that his disability no longer prevented him from beginning or resuming his chosen program of education. 4. Then, readjudicate the claim. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Shawkey, 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.