Citation Nr: 21073862 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 15-12 840 DATE: December 10, 2021 ORDER Entitlement to an extension of the delimiting date beyond August 30, 2012, for Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code is denied. FINDINGS OF FACT 1. The Veteran was found to have a total disability permanent in nature resulting from service-connected disability in a rating decision in December 1991. Additionally, in this rating decision, VA established basic eligibility to DEA benefits. Notification of this rating decision was sent to the Veteran on January 21, 1991. 2. The Veteran and appellant were married on August 30, 2002. 3. The evidence does not reflect that the appellant had a physical or mental disability that prevented her from using her DEA benefits under Chapter 35 prior to the August 30, 2012 delimiting date. CONCLUSION OF LAW The criteria for entitlement to an extension of the delimiting date beyond August 30, 2012 for DEA benefits under the provisions of Chapter 35, Title 38, United States Code, have not been met. 38 U.S.C. §§ 3501, 3512, (2018); 38 C.F.R. §§ 21.1033, 21.3021, 21.3046, 21.3047 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1984 to September 1986. The appellant is his spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2013 decision by the education officer at the VA Regional Processing Office in Buffalo, New York. The Veteran testified before the Board concerning this issue in November 2020 pursuant to his hearing request. A transcript of the hearing is of record. A legacy appeal such as this consists of a timely notice of disagreement (NOD) followed by the issuance of a statement of the case (SOC) and a timely substantive appeal. 38 C.F.R. §19.20. Further, an NOD and/or a substantive appeal may be filed by a claimant personally, or by his or her representative. 38 C.F.R. § 19.50. In this case, the appellant initiated the appeal by filing an NOD in November 2013 followed by the Agency of Original Jurisdiction's (AOJ) issuance of a SOC in April 2014. However, the Veteran, not the appellant, filed a substantive appeal in January 2015. Moreover, the substantive appeal was not timely filed. 38 C.F.R. §19.52. The United States Court of Appeals for Veterans Claims (Court) has held that the filing of a substantive appeal is not jurisdictional and may be waived by VA as to the issues of timeliness, substance, or as to any issue embraced within the substantive appeal or as to the entirety of the claim or claims raised in the substantive appeal. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). Under these circumstances, as there is sufficient reason to find that the appellant was led to believe that her appeal for an extension of the delimiting date for Chapter 35 DEA benefits remained pending despite the substantive appeal not being filed by her or her current representative or in a timely manner, the Board will proceed with the appeal. Basic eligibility for Chapter 35 DEA benefits is established in one of several ways, including being the spouse of a veteran who has a total disability permanent in nature resulting from a service-connected disability. 38 U.S.C. § 3501; 38 C.F.R. § 21.3021. In this case, the Veteran was found to be entitled to a TDIU in a December 1991 rating decision with an effective date in April 1990. He was also awarded basic eligibility to DEA benefits under 38 United States Code, Chapter 35, and he was notified of the decision by letter dated January 21, 1992. The Veteran and the appellant were married on August 30, 2002. The rule regarding the payment of educational assistance benefits under Chapter 35, Title 38, of the United States Code, provides that the beginning date of eligibility for a 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, or any date between the dates as specified by the eligible spouse. 38 U.S.C. § 3512 (b)(1); 38 C.F.R. § 21.3046 (a)(2)(iii). Educational assistance shall not exceed 10 years after one of the following last occurs: (i) The date on which the Secretary first finds the spouse from whom eligibility is derived has a service-connected total disability permanent in nature; (ii) The date on which the Secretary determines the spouse from whom eligibility is derived died of a service-connected disability. 38 U.S.C. § 3512 (b)(1)(B)(i)(ii). In Cypert v. Peake, the Court addressed the calculation of the delimiting date for DEA benefits when an individual marries a veteran over 10 years past the date VA determined that veteran to be permanently and totally disabled as a result of service-connected disability. 22 Vet. App. 307 (2008). In that case, the Court first noted that the term "eligible person" for DEA purposes contained 2 elements. Id. at 309. First, a person could not become eligible unless that person is a spouse. Id. Next, that person must be a spouse of another who has a total disability permanent in nature resulting from service-connected disabilities. Id. (citation omitted). Accordingly, the Court held that a person becomes an "eligible person" for the purposes of triggering the 10-year eligibility period for DEA benefits when that person married the qualifying spouse. Id. at 309-10. The 10-year delimiting period may be extended if the eligible spouse or surviving spouse does the following: (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. 38 U.S.C. § 3512(b)(2); 38 C.F.R. § 21.3047 (a)(i-iv). An eligible spouse's extended period of eligibility 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). Also, it must be clearly established by medical evidence that such program of education was medically infeasible. 38 C.F.R. § 21.3047(a)(2)(i). The pertinent facts in this appeal show that the appellant filed a claim for Chapter 35 DEA benefits in July 2013 for her enrollment in a program at Central Pennsylvania Institute beginning in August 2013. She remarked on her claim that it was the first time she was able to attend school due to raising her children. The AOJ denied the appellant's claim for Chapter 35 DEA benefits in August 2013 informing her that her eligibility end date was January 21, 2002 (10 years after the effective date of the Veteran's TDIU rating). In September 2013, the appellant requested that the AOJ reconsider her claim noting that she and the Veteran did not marry until August 30, 2002. In a decision letter in September 2013, the AOJ informed the appellant that by using her date of marriage of August 30, 2002 as the beginning date of her eligibility period for Chapter 35 DEA benefits her ending date would have been August 30, 2012. Accordingly, the AOJ informed her that VA could not pay for benefits for any period beyond that date. In her November 2013 notice of disagreement and in a January 2014 statement, the appellant said that she was not informed of her eligibility for Chapter 35 DEA benefits until 2005. She also said that she was not able to attend school during periods when the Veteran was recovering from surgery in 2006 and in 2009 because she was his sole caregiver. She explained that she provided the Veteran healthcare following his surgeries and helped him with activities of daily living. She also said that she took him to medical appointments. She added that it took almost a year for the Veteran to recover from his surgery in 2009. The Veteran similarly testified in November 2020 that the appellant is his primary caregiver when he is sick and that she was not able to attend school until 2011 or 2012 due to having to care for him. While the Board is sympathetic to the appellant's circumstances, there is no provision under the law for an extension of Chapter 35 DEA benefits. This is so regardless of whether she was unable to attend school due to raising her kids as she reported on her July 2013 claim or whether it was due to her having to care for the Veteran when he was ill as she and the Veteran have asserted in conjunction with this appeal. As noted, the delimiting date can only be extended if the appellant was prevented from attending school due to a disability of her own which she has not asserted and which is not otherwise shown by the evidence. Regarding the appellant's assertion that she was not informed that she was entitled to Chapter 35 DEA benefits until 2005, the Board does not dispute this. However, the fact that she was not made aware of her entitlement to these benefits prior to 2005 does not provide a basis under the law for extending these benefits. While VA tries to make concerted efforts to notify individuals of their potential entitlement to VA benefits, there is no express or implied provision in law under which VA is absolutely obligated to provide personal notice of a potential benefit to each and every one who might be potentially eligible. Moreover, pertinent regulation specifically states that VA's failure to give a claimant or potential claimant any form or information concerning the right to file a claim or to furnish notice of the time limit for the filing of a claim will not extend the time periods allowed for these actions. 38 C.F.R. § 21.1033(a). Based on the foregoing, the Board concludes that there is no legal basis to extend the delimiting date for DEA benefits for the appellant beyond August 30, 2012. Where the law and not the evidence is dispositive of the issue before the Board, the claim must be denied because of the absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). H. SEESEL 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.