Citation Nr: 21015040 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 02-20 092A DATE: March 16, 2021 ORDER Entitlement to an extension of the delimiting date for Dependents’ Educational Assistance (DEA) benefits under Chapter 35, Title 38 of the United States Code (Chapter 35) beyond June 10, 2001, 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 June 10, 2001, for DEA benefits. CONCLUSION OF LAW The criteria for entitlement to an extension of the delimiting date for DEA benefits under Chapter 35 beyond June 10, 2001, 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 August 1968 to June 1974. Although the Veteran and the appellant divorced in November 2016, the record shows that the appellant was the Veteran’s spouse during the applicable period on appeal. The appellant requests an extension of the eligibility period to use DEA benefits beyond June 10, 2001. Specifically, in the July 2002 Notice of Disagreement (NOD) and the December 2002 Substantive Appeal to the Board (VA Form 9), the appellant asserted that her 10-year eligibility period to use the spousal Chapter 35 educational assistance benefits should start from April 30, 1992, as that is the date that the Board issued a decision establishing a permanent and total disability rating for the Veteran’s psychiatric disability. Specifically, she stated that she applied for DEA benefits within 10 years of April 30, 1992, by filing an application that was received by VA in March 2002. Moreover, she contended that in May 2002, she requested that an extension of the delimiting date be granted for her to use DEA benefits. 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 became eligible for Chapter 35 spousal education benefits on June 10, 1991, the date that the Agency of Original Jurisdiction (AOJ) informed the Veteran that he was deemed to have a total and permanent disability in the form of his service-connected psychosis disability, which was later diagnosed as paranoid schizophrenia with posttraumatic stress disorder (PTSD). Specifically, this letter informed the Veteran that a May 28, 1991, rating decision granted a 100 percent rating, as well as permanent status, for this disability since January 7, 1991. The June 10, 1991, letter also included information about DEA benefits for his dependents, as well as information regarding which forms to file and the eligibility periods to use such benefits. Consequently, the appellant was entitled to use her DEA educational benefits for a 10-year term following June 10, 1991, or until June 10, 2001, as that is when the Secretary first found the Veteran to have a service-connected total disability permanent in nature. See 38 U.S.C. § 3512(b)(1); 38 C.F.R. § 21.3021(a). Nonetheless, the record shows that the appellant did not file for DEA benefits until March 11, 2002, which was after the 10-year delimiting period. However, this 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). The record shows that the appellant filed the extension within the appropriate time limit, as she filed a May 2002 request, which was within one year of the delimiting date of June 10, 2001. In this request, as well as the July 2002 NOD and December 2002 VA Form 9, Appeal to the Board, the appellant asserted that the delimiting date was calculated wrong, in that it should be April 30, 2002, rather than June 10, 2001. Specifically, she points to a Board decision, issued on April 30, 1992, in which the Veteran’s permanent and total psychiatric disability was granted an earlier effective date for the 100 percent disability rating from the initially-assigned January 7, 1991, to February 5, 1990. The appellant asserts that the 10-year period should start from the date of the April 30, 1992, Board decision. However, the Board notes that even though its April 30, 1992, decision granted an earlier effective date for this disability rating, the Veteran and his dependents were first notified of that he was granted a permanent and total disability in the June 10, 1991, letter. The April 30, 1992, Board decision merely determined that the rating for the service-connected psychiatric disability should be earlier than the January 7, 1991, effective date. Moreover, in the July 2002 NOD and the December 2002 VA Form 9, the appellant asserted that she needed only about two years of benefits to complete her master’s degree program that she enrolled in by filing the March 2002 Application for Survivors’ and Dependents’ Educational Assistance form (VA Form 22-5490). She stated that as the Veteran became more dependent on her, she felt it a wise decision to prepare for the future of their children and the Veteran. She stated that her goal was to re-enter the work force in the field of education. She noted that after the events of September 11, 2001, she, like a lot of people, lost their jobs. She stated that she lost her job in accounting in December 2001 due to downsizing. She stated that she wanted to prepare herself for a re-entry into the work force with additional education and that this master’s degree would allow her to obtain a job better suited to help with her children’s education and their needs. She stated that she and her family were trying to not be totally dependent on the Veteran’s compensation for all of their financial support and that they would eventually need additional help with the Veteran’s illness. Thus, she was trying to prepare for the future, and she wanted to financially contribute to their household. Given this evidence, the Board finds that the appellant has not provided evidence sufficient to show that she had a physical or mental disability that prevented her from initiating or completing a chosen program of eduction prior to the June 10, 2001, 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 early 1990s, the record does not show that the appellant has identified or provided VA with any medical evidence showing 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. 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. In fact, as stated by the appellant in the December 2002 VA Form 9, she attempted to use Chapter 35 benefits in 2002 for the first time in order to plan for the future and earn a master’s degree due to provide financially for her family after being downsized from her previous place of work. The Board acknowledges the contentions made by the appellant and the evidence of record that shows the severity of the Veteran’s symptoms from his service-connected disabilities during the 10-year period preceding June 10, 2001. The Board finds it a testament to the appellant’s character and ability that she was able to pursue full-time employment and provide financial, personal, and medical care to the Veteran and their two minor children during that timeframe and in light of these circumstances. Her actions and dedication to her family are laudable. However, the weight of the evidence does not show that she had a physical or mental disability that prevented her from initiating or pursuing her education goals during the 10-year eligibility period. Overall, the record does not reflect that any such disability precluded pursuit of her chosen program of study prior to June 10, 2001. Although the Board is sympathetic to the appellant’s contentions, 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, there is no basis upon which to grant an extension of the delimiting date beyond June 10, 2001. 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.