Citation Nr: 21077498
Decision Date: 12/29/21	Archive Date: 12/29/21

DOCKET NO. 18-43 187
DATE:  December 29, 2021

ORDER

Entitlement to an extension of the delimiting date for Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code (Chapter 35) beyond April 1, 2017, is denied.

FINDING OF FACT

The competent and credible evidence of record does not reflect that a physical and/or mental disability prevented the appellant from initiating or completing her chosen program of education during the eligibility period sufficient to extend the delimiting date beyond April 1, 2017, for DEA benefits.

CONCLUSION OF LAW

The criteria for entitlement to an extension of the delimiting date for DEA benefits under Chapter 35 beyond April 1, 2017, 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 May 1982 to April 1983. The appellant is the Veteran's spouse. 

The appellant and the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a virtual Board hearing in April 2021. A transcript of the hearing is of record. 

This case was previously before the Board in July 2021, at which time the Board remanded the matter for the Agency of Original Jurisdiction (AOJ) to contact the appellant and request that she provide evidence to support the allegation that she was prevented from initiating or completing her education program because of a physical or mental disability, and to readjudicate the claim thereafter. The record shows that the AOJ sent the requested letter to the appellant in August 2021, and readjudicated the matter on appeal in a September 2021 supplemental statement of the case (SSOC). Thus, the Board determines that there was substantial compliance with the July 2021 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998).

The appellant requests an extension of the eligibility period to use DEA benefits beyond April 1, 2017. Specifically, in statements throughout the appeal, including in the April 2018 Notice of Disagreement (NOD) and the August 2018 Substantive Appeal to the Board (VA Form 9), and testimony at the April 2021 Board hearing, the appellant asserted that her 10-year eligibility period to use the spousal Chapter 35 educational assistance benefits should be extended past April 1, 2017, because she was unable to attend school during a portion of the eligibility period due to having to care for her husband, who is a disabled veteran. For example, she testified during the April 2021 Board hearing that her responsibilities as the primary caregiver to the Veteran, as well as his multiple surgeries between 2013 and 2017, prevented her from continuing to attend school and use her DEA benefits. She also testified that the Veteran's disabilities and surgeries had significantly impacted her mental state and had prevented her from completing her coursework. 

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. Moreover, the beginning date of eligibility may be any date that the spouse chooses between the effective date of the veteran's total and permanent rating and the date of first notification 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).

The appellant's eligibility for DEA benefits is not in question, as she has been found to be eligible for such benefits. Rather, the dispute in this case is the delimiting date for such benefits. Specifically, the record shows that the Veteran was found to be totally and permanently disabled, effective April 1, 2007, by a January 2007 rating decision. The Veteran and the appellant were notified of this decision when it was sent to the Veteran on January 24, 2007. Thus, the delimiting (ending) date for the appellant's DEA benefits was established as April 1, 2017. 

On April 12, 2017, VA received the appellant's request for an extension of DEA benefits, which had expired on April 1, 2017. The appellant indicated that she was the Veteran's primary and only caregiver, and that by that point, he had 24 surgeries or procedures from November 9, 2012 to March 9, 2017. She asserted that she was unable to attend school during that time period because she was caring for the Veteran. She stated that she would very much like to finish the courses needed to earn her associate degree. 

VA laws and regulations state that 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).

In reply to the appellant's timely request for an extension, the AOJ issued an April 2017 decision, informing the appellant that her DEA benefits could not be extended as the appellant's own physical or mental disability (not the Veteran's service-connected disabilities) had not prevented her from initiating or completing her chosen program of education within the applicable period of eligibility. See 38C.F.R. §21.3047(a).

In disagreeing with that determination, the appellant submitted the April 2018 NOD in which she again stated that she should receive an extension of the delimiting date because she was unable to attend school due to having to care for her disabled husband. She noted that the Veteran had dozens of surgeries during the time that she was not enrolled in future college classes. She stated that as his primary and only caregiver, she was unable to participate in classes and that she felt that the time constraint was unfair and unreasonable, as she was caring for the Veteran. She submitted a list of the types of surgeries, with dates when they occurred, that the Veteran underwent from November 2012 to March 2017. She made very similar assertions in the August 2018 VA Form 9, in which she noted that the Veteran had required 34 surgeries for his service-connected disabilities by this time. 

Likewise, during the April 2021 Board hearing, the appellant testified that although she initially applied for DEA benefits in 2010 to attend school, she stopped going to classes to be a caregiver to the Veteran. She testified that her responsibilities, and the Veteran's multiple surgeries from 2013 to 2017, had significantly impacted her mental state and had prevented her from completing her coursework. She testified that she did not have the mental capacity to be taking classes while the Veteran was going through surgeries, which, at times, required him to stay in the hospital for weeks or months at a time. 

In a May 2021 letter, the appellant wrote that she had a previous traumatic brain injury (TBI) that she experienced from a November 1998 car accident. She noted that she attended college between Spring 2011 to the Spring 2013 semesters, and that she was required to take remedial coursework due to her own disability, as well as regular credit hours to attain a degree. She stated that the course requirements and the extra remedial classes were difficult, at best, due to her own disability, but when her responsibilities as the Veteran's primary caregiver and a mother of two and other household responsibilities were added in, her life was challenging. She stated that despite these challenges and her neurological deficits, she maintained a 4.0 grade point average (GPA). She described multiple challenges she and her family faced during the Spring 2013 semester, including relocating to a new home to be closer to VA medical facilities and due to revisions of the Veteran's left leg amputation. She further stated that she did not enroll for the Fall 2014 semester due to these circumstances, as well as the death of her father, and she was in no condition to attend classes in the Spring 2015 semester due to grief. 

The appellant noted the daily stress and challenges she endured due to her responsibilities as a caregiver of an extremely ill veteran. She described her caregiving responsibilities as "challenging, overwhelming, exhausting, and just plain stressful." She further asserted that she had experienced "days of tears, barely coping, trying to function normally, while continuing to live life even though you are an emotional wreck." She stated that the Veteran had undergone 79 surgeries by now. She further stated that following her father's death, she was diagnosed with severe adenomyosis and consequently severe anemia. She asserted that her physician stated that it was the worst case of the disease she had seen or heard of in more than 30 years of practice. She stated that she was admitted for surgery in December 2015 for a hysterectomy, which involved many weeks of recovery. She stated that by the time she decided it was time for her to return to college in January 2017 after the grief from her father's death was manageable, she had recovered from surgery, and the Veteran's health had become more stable, she received notice from VA that she would not be able to use DEA benefits after April 2017 due to the delimiting date. 

As noted in the Board's July 2021 remand, the applicable regulations require that in order for an extension of the delimiting date for use of DEA benefits due to a spouse's physical or mental disability to be granted, it must be clearly established by medical evidence that she was prevented from initiating or completing her chosen program of education, i.e., that such program of education was medically infeasible. See 38 C.F.R. § 21.3047(a)(2)(i). Thus, although the Board considered the appellant's statements throughout the appeal, including in the May 2021 letter, the Board remanded the claim to request that the appellant submit medical evidence to support the allegation that she was prevented from initiating or completing her education program because of a physical or mental disability of her own. Accordingly, in August 2021, the AOJ sent such a letter to the appellant requesting that she identify relevant information, including the treating doctor's name, diagnoses, and dates she was prevented from attending school due to her physical or mental disability. The record shows that this letter was sent to the last known address on file for the Veteran and appellant and was not returned as undeliverable by the United States Postal Service. The appellant did not provide VA with a reply. Accordingly, the Board must adjudicate her claim based on the evidence of record. 

Given this evidence, the Board finds that the appellant has not provided evidence sufficient to show that she had a physical and/or mental disability that prevented her from initiating or completing a chosen program of eduction prior to the April 1, 2017, delimiting date to use 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). 

While the claims file contains many treatment records concerning the Veteran's health since the 1980s, the record does not show that the appellant has identified or provided VA with medical evidence showing 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. While the appellant has asserted that she experienced a decline in her mental and physical health, including severe adenomyosis and anemia that required a hospital stay due to a hysterectomy, there is a lack of medical evidence substantiating these facts, to include that the appellant's educational program was medically infeasible. In other words, the record does not support a finding that the appellant did not use Chapter 35 benefits within the 10-year period due to a physical or mental disability. As noted above, medical evidence must establish that such a program of education was medically infeasible. No medical evidence has been submitted to show the diagnoses of severe adenomyosis and anemia and the length of time it took to recover from the December 2015 surgery, or show residual disability or disabilities due to the November 1998 car accident and how that residual symptoms impacted the appellant's education program. 

The Board acknowledges the contentions made by the appellant and the evidence of record that shows the severity of the Veteran's symptoms and surgeries from his service-connected disabilities during the 10-year period preceding April 1, 2017. The Board finds it a testament to the appellant's character and ability that she was able to provide financial, personal, and medical care to the Veteran and their two children during that timeframe in light of these circumstances. Her actions and dedication to her family are laudable. However, the weight of the evidence does not show that the appellant had a physical or mental disability that prevented her from initiating or pursuing her education goals during the 10-year eligibility period. To reiterate, at the present time, there is no competent medical evidence showing that the appellant was prevented from continuing her education benefits due to a physical or mental disability of her own. Her statements and testimony are not equivalent to "medical evidence," which does not mean that her statements and testimony are not credible. Rather, there is a lack of medical evidence supporting the facts alleged. Overall, the medical record does not reflect that a disability or disabilities precluded pursuit of the appellant's chosen program of study prior to April 1, 2017. 

In the May 2018 Statement of the Case (SOC) and the September 2021 SSOC, the AOJ interpreted a change to VA law regarding an extension of the delimiting dates for use of educational assistance by primary caregivers of seriously injured veterans and members of the Armed Forces. Specifically, the AOJ determined that this change to 38 U.S.C. § 3031, which was enacted by Congress to apply to instances where the delimiting date for DEA benefits occurred after August 1, 2011, applied only to children of seriously injured veterans and not to their spouses. See Post-9/11 Veterans Educational Assistance Improvements Act of 2010, Pub. L. No. 111-377, § 201, 124 Stat. 4106, 4122-23 (Jan. 4, 2011). For example, the AOJ noted in the September 2021 SSOC that Public Law 111-377 allows extensions to a dependent child's DEA period of eligibility (delimiting date) if the dependent child acted as the primary provider of personal care services for a veteran and who, as a result, was prevented from pursing a program of education on or after August 1, 2011. The AOJ noted that although the appellant was requesting an extension of the delimiting date based on being the caregiver of the Veteran, she was the dependent spouse of the Veteran. Thus, the AOJ determined that even though she acted as the primary provider of personal care services for the Veteran and was prevented from school attendance, VA could not grant her an extension of her DEA delimiting date as she was the Veteran's spouse. 

Public Law 111-377, § 201 was amended 38 U.S.C. § 3031(d)(1) to state that: "In the case of an individual eligible for educational assistance under this chapter who is prevented from pursuing the individual's chosen program of education before the expiration of the 10-year period for the use of entitlement under this chapter otherwise applicable under this section because of a physical or mental disability which is not the result of the individual's own willful misconduct, such 10-year period(A) shall not run during the period the individual is so prevented from pursuing such program; and (B) shall again begin running on the first day after the individual's recovery from such disability on which it is reasonably feasible, as determined under regulations prescribed by the Secretary, for the individual to initiate or resume pursuit of a program of education with educational assistance under this chapter." 

Furthermore, 38 U.S.C. § 3031(d)(2) further provides that "(A) Subject to subparagraph (B), in the case of an individual eligible for educational assistance under this chapter who is prevented from pursuing the individual's chosen program of education before the expiration of the 10-year period for the use of entitlement under this chapter otherwise applicable under this section by reason of acting as the primary provider of personal care services for a veteran or member of the Armed Forces under section 1720G(a) of this title, such 10-year period(i) shall not run during the period the individual is so prevented from pursuing such program; and (ii) shall again begin running on the first day after the date of the recovery of the veteran or member from the injury, or the date on which the individual ceases to be the primary provider of personal care services for the veteran or member, whichever is earlier, on which it is reasonably feasible, as so determined, for the individual to initiate or resume pursuit of a program of education with educational assistance under this chapter. (B) Subparagraph (A) shall not apply with respect to the period of an individual as a primary provider of personal care services if the period concludes with the revocation of the individual's designation as such a primary provider under section 1720G(a)(7)(D) of this title." 

In the November 2021 Informal Hearing Presentation, the appellant's representative contended that the AOJ was applying Section 201 of Public Law 111-377 incorrectly with regard to the sought benefits. The representative noted that this section of Public Law 111-377 addresses and uses the general term "individual" and does not differentiate between "child" or "spouse" with regard to extension of the delimiting date. The representative noted that VA has already, and on multiple occasions, stated that the appellant was the primary provider of personal care services for the Veteran. Thus, in turn, this should entitle her to an extension of the delimiting date of DEA (Chapter 35) benefits. 

The Board has considered the contentions made by the appellant's representative and determines that the provisions of 38 U.S.C. § 3031(d) or Public Law 111-377, § 201, do not apply to her circumstances. Specifically, without determining whether this provision applies equally to children and spouses of seriously injured veterans and members of the Armed Forces to extend the delimiting date for DEA benefits, the Board notes that this provision is applicable only to individuals who participated in VA's Program of Comprehensive Assistance for Family Caregivers (Caregiver Program). Specifically, the exception noted in 38 U.S.C. § 3031(d)(2) is applicable only to an individual who was prevented from pursuing the individual's chosen program of education before the expiration of the 10-year period for the use of DEA benefits by reason of acting as the primary provider of personal care services for a veteran or member of the Armed Forces under section 38 U.S.C. § 1720G(a), i.e., the Caregiver Program. 

The record shows that the appellant did not participate in this program during the 10-year period from April 2007 to April 2017. In fact, the evidence shows that she and the Veteran do not meet certain requirements of the Caregiver Program in order for her to participate. For example, one of the requirements is that a veteran's service-connected disabilities must have been caused or made worse by active duty service on or before May 7, 1975, or on or after September 11, 2001. See generally, https://www.va.gov/family-member-benefits/comprehensive-assistance-for-family-caregivers/. As the record does not show, and the appellant has not asserted, that she participated in VA's Caregiver Program at any time during the 10-year eligibility period, the exception for extending the delimiting date for DEA benefits found in 38 U.S.C. § 3031(d)(2) does not apply to this case. 

The Board is sympathetic to the appellant's contentions; however, 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, the preponderance of the evidence is against a basis upon which to grant an extension of the delimiting date beyond April 1, 2017. 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.

 

 

A. P. SIMPSON

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.