Citation Nr: 21007926 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 17-11 584 DATE: February 11, 2021 ORDER New and material evidence having been received, the previously denied claim of entitlement to an extension of the delimiting period for education benefits under Chapter 35, Title 38 U.S. Code, also known as the Dependents’ Educational Assistance (DEA) benefits, is reopened. Entitlement to an extension of the delimiting date beyond June 19, 1996, for DEA benefits is denied.   FINDINGS OF FACT 1. The appellant is the surviving spouse of a Veteran who died during inactive duty for training (INACDUTRA) in October 1985. 2. The appellant’s basic eligibility to DEA benefits was established on June 19, 1986. As such, the delimiting date is June 19, 1996; 10 years from the date VA established her eligibility. 3. The medical and lay evidence of record reflects that following the Veteran’s death in 1985, through October 2007, the appellant received medical treatment for a mental disability that prevented her from initiating or completing a chosen program of education. 4. In November 2016, the appellant submitted medical and lay evidence showing treatment received for a mental disability. Such evidence was received more than one year from October 2007. CONCLUSIONS OF LAW 1. The criteria for entitlement to an extension of the delimiting date beyond June 19, 1996, for DEA benefits are not met. 38 U.S.C. §§ 3501, 3512; 38 C.F.R. §§ 21.3046, 21.3047, 21.5720. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1980 to January 1982. The Veteran had additional service in the Army National Guard. The Veteran died in October 1985, during a period of inactive duty for training (INACDUTRA). The appellant is his surviving spouse. The case is on appeal from a March 2016 decision that denied reopening the previously denied claim of an extension of the delimiting period for DEA benefits. The Board has limited the discussion below to the relevant evidence required to support its findings of facts and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to an extension of the delimiting date for DEA benefits. By a January 2002 VA decision, a claim for extension of the delimiting date for DEA benefits under Chapter 35 was denied on the basis that the evidence did not reflect the appellant had a disability preventing her from initiating or completing a program of education. The appellant was notified of the decision by letter on the same date, which was mailed to the then current mailing address of record. Thereafter, nothing further regarding the claim was received until the present claim to reopen in March 2016. No new evidence or notice of disagreement was received by VA within one year of the issuance of the January 2002 decision. As the appellant did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. In support of her claim, the appellant submitted new medical evidence reflecting that during her eligibility period she was receiving medical treatment for a mental disability that prevented her from initiating or completing a chosen program of education. See May 17, 2016 lay statement (the appellant asserts that mental health treatment was being received from 1985 to 1996); see also CIOX Health LLC medical records submitted in June and November 2016, accounting for mental health treatment received between 1993 through 2007. The Board finds that new and material evidence has been submitted so that the previously denied claim for entitlement to an extension of the delimiting period for DEA benefits is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Entitlement to an extension of the delimiting period for DEA benefits. Legal Criteria Basic eligibility for Chapter 35 benefits for the child, spouse or surviving spouse of a veteran may be established if: (1) the veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service connected disability was in existence at the date of the veteran’s death; or (4) the veteran died as a result of a service-connected disability. 38 U.S.C. §§ 3500, 3501, 3510; 38 C.F.R. § 3.807. For purposes of VA educational benefits, VA laws and regulations define the term spouse as “a person of the opposite sex who is the husband or wife of the Veteran or servicemember,” whereas “surviving spouse” is defined as “a widow or widower who is not remarried.” See 38 C.F.R. § 21.5720 (d) and (f). The first one is based on the premise that the beneficiary is the spouse of a living Veteran who is currently considered totally and permanently disabled by VA, whereas the latter is based on the premise that the beneficiary is the surviving spouse of a Veteran who “died in service,” had a total service-connected disability at the time of death, or died as a result of a service-connected disability. Accordingly, the Laws applicable to the present case are those clearly enunciated by Congress to apply to surviving spouses. 38 U.S.C. § 3501 (a)(B) and § 3512 (b)(1)(A) provides that the surviving spouse of a person who died of a service-connected disability during a period of qualifying period may be afforded educational assistance benefits under this chapter during the 10-year period beginning on the date that the secretary determines that the Veteran from whom eligibility is derived dies of a service-connected disability. See also 38 U.S.C. § 3512 (b)(1)(B)(ii). If the Veteran’s death occurred after November 30, 1968, and VA makes a final decision concerning the surviving spouse’s eligibility for dependents’ educational assistance before October 28, 1986, the beginning date of the 10-year period is the date on which VA determines that the Veteran died of a service-connected disability. In other words, the beginning date of the 10-year period of eligibility will begin on the effective date of the rating or the date of notification, whichever is more advantageous to the surviving spouse. See 38 C.F.R. § 21.3046 (a)(2)(B) and subsections (b)(4)(ii). For its part, 38 U.S.C. § 3512 (b)(1)(C) provides a 20-year delimiting period to a person who is made eligible to educational assistance benefits under this chapter by reason of the death of a person “on active duty.” For surviving spouses, the period of eligibility cannot exceed 10 years and can be extended pursuant to the following requirements: In the case of any eligible person whose eligibility is based on the death or disability of a spouse, if the person was prevented from initiating a chosen program of education within the eligible period because of a physical or mental disability not the result of such person’s willful misconduct, such person, upon application “made within one year” after the last day of the delimiting period, or from the termination of the period of mental or physical disability, whichever is the latest, may be granted an extension of the applicable delimiting period for such length of time that the person was prevented from initiating or continuing a chosen program of education. See 38 U.S.C. § 3512(b)(1)(D)(2); 38 C.F.R. § 21.3047(c)(2). Ultimately, in determining whether an eligible “spouse or surviving spouse” was prevented from initiating or completing the chosen program of education because of a physical or mental disability, VA will consider, inter alia, whether it is clearly established by medical evidence that such a program was of education was medically infeasible. See 38 C.F.R. § 21.3047(a)(iv)(2)(i). Analysis The appellant contends that an extension of her delimiting period for her DEA benefits must be warranted. In support of her contention, the appellant asserts that (1) from 1992 to 2002 she had to take her of her daughter who had been diagnosed with a terminal illness which prevented her from attending school; and (2) that following the Veteran’s death in October 1985 she was traumatized and mentally ill for which she continued to receive intensive mental health treatment, to include inpatient care. See April and June 2016 lay statements. As an initial matter, the Board notes that the Veteran died during a period of INACDUTRA. While the Veteran dies during a period of qualifying service, this did not occur during a period of active duty service and, therefore, the provisions set forth in 38 U.S.C. § 3512 (b)(1)(C) with respect to a 20-year delimiting period are not applicable to the facts of the present case. There is no dispute that the appellant is the surviving spouse of a Veteran who died during a period of INACDUTRA. There is also no dispute that the appellant was entitled to DEA benefits. Indeed, a June 19, 1986 VA letter notified her of her eligibility. See Dependency and Indemnity Compensation (DIC) benefits award notification letter. As the appellant was awarded VA benefits, to include establishment of basi eligibility for DEA benefits on June 19, 1986, the applicable 10-year delimiting period of eligibility was June 19, 1996 and not October 20, 1985 as determined by the RO. See 38 C.F.R. § 21.3046 (the beginning date of the 10-year period of eligibility will begin on the effective date of the rating or the date of notification, whichever is more advantageous to the surviving spouse). A review of the claims file does not indicate that the appellant initiated or completed a chosen program of education during her eligibility period. Thus, the question for the Board turns as to whether the appellant was prevented from doing so due to a physical or mental disability that was not the result or her own willful misconduct. Turning to the appellant’s first contention, the diagnosed terminal disability of her daughter, she asserts that from 1992, until sometime in 2002, her daughter’s terminal lung condition required continuous treatment, hospitalizations, and intensive medical care, which in turn prevented her from initiating her desired education at the time. While the Board is sympathetic with the appellant’s assertions and reasons that prevented her from doing so, VA laws and regulations do not include criteria for extensions other than for those mental or physical disabilities of the spouses or surviving spouses themselves. The Board is bound by the applicable law and regulations and, therefore, the appellant’s first contention cannot be considered as a reason for an extension of her delimiting date beyond June 19, 1996, as it is the law, and not the facts, what is dispositive of the present appeal. See 38 U.S.C. § 7104(c). Turning into the appellant’s second contention, her own mental disability, the Board notes that in a May 1998 VA Form 21-8924 (Application for Surviving Spouse or Child for REPS Benefits), the appellant indicated that shortly after her husband’s (Veteran) death in October 1985, she was diagnosed with manic depressive disorder as a result of the trauma, for which she could not be under too much pressure, including to attend school. No additional details or medical evidence was submitted at that time in support of her statements. Nevertheless, in June 2016, the appellant submitted copies of her private medical records accounting for psychiatric treatment provided from 1993 to present. See May 5, 2016 CIOX Health LLC mental health records. The foregoing medical records reflect that the appellant in fact received mental health treatment for bipolar manic disorder, paranoid ideation, rapid mood shifts, and delusions which consequently required psychiatric hospitalizations in October 1996, at some point in 2000, June 2007 and ultimately in September 2007. See October 1996 Baylor Health Care Systems Admission report; June 2007 Timberlawn Mental Health Systems records; September 2007 discharge report from Green Oaks Behavioral Healthcare Services; and October 2007 discharge summary from Green Oaks Hospital. The June 2007 psychiatric admission report described the appellant’s mental health disability as causing a major disability in social, interpersonal, occupational, and/or educational functioning that can only be addressed in an acute inpatient setting. See June 28, 2007 Medicare Initial Certification Report. Thereafter, the evidence does not reflect that the appellant received additional treatment or was hospitalized by reason of her psychiatric disabilities. This particularly so given that the medical records submitted in June 2016 indicated that the copies included in the release of information from CIOX Health LLC accounted for the period from 1993 to present (2016). Accordingly, that is the last date that the most probative and competent medical evidence of record establishes that the eligible surviving spouse (here the appellant) was prevented from enrolling or reenrolling in the chosen program of education pursuant to 38 C.F.R. § 21.3047(a)(2). As previously noted, the medical evidence indicating that the appellant received psychiatric treatment and was therefore prevented from initiating or enrolling in a chosen program of education was initially received in June 2016. That is approximately 9 years from October 2007. In light of the above, the Board finds that while in fact the evidence of records strongly suggests that the Veteran was prevented from initiating or enrolling in a program of education during her eligibility period, and that such mental disability appears to have been extended until October 2007, the request for an extension of the delimiting date beyond June 19, 1996 was received more than one year from October 2007. The one year requisite for surviving spouses is established by § 3512((b)(1)(D)(2). While the Board acknowledges that the appellant believes that she is entitled to an extension of her delimiting period for DEA benefits, the law does not support such given the facts of this specific case. For the reasons set forth above, the Board finds that a request for an extension of the delimiting period for DEA benefits was received more than one year from October 2007 and, therefore, entitlement to an extension of the delimiting date is not warranted. As the preponderance of the evidence is against the claim, the reasonable doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, an extension of the delimiting date of June 19, 1996, for DEA benefits, is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William Pagan, Associate 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.