Citation Nr: 21025561 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 19-04 568 DATE: April 28, 2021 ORDER An extension of the delimiting date beyond July 1, 2018, for VA educational assistance benefits under Chapter 33, Title 38, United States Code (known as the Post-9/11 GI Bill), is denied. FINDINGS OF FACT 1. The Veteran separated from active duty service on June 30, 2003, after more than 90 days of continuous active duty service; his period of eligibility for Chapter 33 education benefits expired on July 1, 2018. 2. VA regulations permit extensions to the 15-year delimiting date only in limited circumstances, none of which are applicable here. CONCLUSION OF LAW The criteria for an extension of the delimiting date for Chapter 33 education benefits are not met. 38 U.S.C. §§ 3031, 3311, 3321; 38 C.F.R. §§ 21.9520, 21.9530, 21.9535. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the United States Army Reserve, which service included, in pertinent part, a period of active duty from January 16, 2003, to June 30, 2003; that period of active duty included service in the Persian Gulf. This appeal before the Board of Veterans’ Appeals (Board) arose from a July 2018 decision of a Department of Veterans Affairs (VA) Regional Office (RO) in which the RO denied an extension of the Veteran’s delimiting date beyond July 1, 2018. The Veteran disagreed with that denial and subsequently perfected an appeal to the Board. In March 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board notes that the Veteran’s representative was not present for the hearing; however, the Veteran indicated his desire to proceed with the hearing without his representative. Delimiting Date Extension The Post-9/11 GI Bill provides for VA educational assistance for members of the Armed Forces based on active duty service after September 10, 2001. 38 U.S.C. § 3311 ; 38 C.F.R. § 21.9520. A veteran is eligible for Chapter 33 education benefits if he served a minimum of 90 aggregate days on active duty after September 10, 2001, and he was separated from active duty service with an honorable discharge. See 38 C.F.R. §§ 21.9505, 21.9520. In the instant case, the Veteran’s entitlement to Chapter 33 educational assistance benefits is not at issue, as entitlement to such has been established. Although the letter notifying the Veteran of his award of Chapter 33 educational assistance benefits is not of record, the November 2018 statement of the case (SOC) indicates that in May 2017, the Veteran was issued a “Certificate of Eligibility” reflecting that he was entitled to receive Post-9/11 GI Bill benefits and that he had until July 1, 2018, to use them. In this regard, the Board notes that the law provides that in the case of a veteran whose last discharge or release from active duty was before January 1, 2013, the period of eligibility for educational assistance terminates 15 years from (i) the date of his last discharge or (ii) the date of his release from a period active duty of at least 90 continuous days (or 30 continuous days if the veteran is released for a service-connected disability). 38 U.S.C. § 3321; 38 C.F.R. § 21.9530. Here, the Veteran was discharged from active duty service on June 30, 2003. His period of eligibility for Chapter 33 educational assistance benefits thus expired on July 1, 2018. In March 2018, the Veteran requested an extension of his delimiting date. The Veteran noted that he had obtained an Associate’s Degree in 2004, but that he had not used VA educational assistance benefits at that time because he was unaware of his eligibility for such. The Veteran then stated that he had attempted to go back to school four years prior, but his youngest child had been diagnosed with autism. The Veteran reported that the time needed to provide care for his child, to include time related to therapy sessions, medical appointments, and schooling, prevented him from continuing his education at that time. He stated that he was only recently able to again pursue his own education and requested that his delimiting date be extended to July 1, 2022, so as to allow him to obtain his Masters Degree in Criminal Justice. In support of his extension request, the Veteran submitted documentation pertaining to his son’s autism diagnosis. Notably, VA will extend a veteran’s period of eligibility if medical evidence clearly establishes that the veteran was prevented from initiating or completing his program of education because of a physical or mental disability that did not result from his own willful misconduct, and if the veteran applies for the extension within a specified time limit. 38 C.F.R. § 21.9535(a). VA will also grant an extension if the veteran was captured and forcibly detained by a foreign government or power and was hospitalized at a military, civilian or medical facility immediately thereafter. 38 C.F.R. § 21.9535(b). Similarly, the date that the period of eligibility begins to run may be delayed if the veteran’s nature of discharge that previously disentitled him from benefits had changed or is the veteran was prevented from pursuing a program of education because he was acting as the primary provider of personal care services for a veteran. See 38 U.S.C. §§ 3031(b), (d), 3321(b). Although the period of eligibility for Post 9/11 GI Bill educational assistance benefits may be extended under certain circumstances, no such exception is applicable in this case. As to the Veteran’s assertion that he was unaware of his eligibility for Post-9/11 Gill Bill benefits in 2004, this does not provide a basis to extension of his eligibility period. While the Board is sympathetic to this argument, VA is under no legal obligation to individually notify every potential claimant of his or her possible entitlement to VA benefits. Lyman v. Brown, 5 Vet. App. 194 (1993); Hill v. Derwinski, 2 Vet. App. 451 (1991). Additionally, the record does not show, and the Veteran does not assert, that he was detained by a foreign government or power after his release from active duty, 38 C.F.R. § 21.9535(b), or that the nature of his discharge previously disentitled him from benefits, 38 U.S.C. §§ 3031(b), 3321(b). The record also does not show, and the Veteran does not assert, that he was acting as the primary care provider of personal care services for a veteran. 38 U.S.C. §§ 3031(d), 3321(b). Rather, the Veteran has stated that he was unable to use his Post-9/11 GI Bill benefits in full prior to the delimiting date on account of needing to care for his autistic child. Although VA will extend a veteran’s period of eligibility if medical evidence clearly establishes that the veteran was prevented from initiating or completing a program of education because of a physical or mental disability, 38 C.F.R. § 21.9535(a), there is no evidence in this case that the Veteran’s own mental or physical disability prevented him from initiating or completing his program of education. Rather, it was the mental or physical disability of his child. Unfortunately, the law does not provide for an extension of the 15-year eligibility period in such cases such as this. Accordingly, because none of the limited circumstances allowing for an extension of the 15-year delimiting date are applicable here, the Board is unable to grant the benefits sought in this case. See 38 U.S.C. §§ 3031 (b)-(d), 3321; 38 C.F.R. §§ 21.9530, 21.9535. Although the Board is sympathetic to the Veteran’s position, and commends the Veteran on his educational pursuits, the applicable law and regulations are clear that except in specific circumstances not met here, the Veteran’s period of eligibility for use of Chapter 33 educational assistance benefits expired on July 1, 2018. As the law and not the evidence is dispositive in this case, the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). In rendering the above determination, the Board is cognizant that the Harry W. Colmery Veterans Educational Assistance Act of 2017, Pub. L. 115-48 provides for the elimination of the 15-year delimiting date for Chapter 33 (Post-9/11 GI Bill) education benefits. However, that provision is only applicable to veterans whose service ended on or after January 1, 2013. As noted above, the Veteran’s active duty service ended in June 2003. Thus, this provision is not applicable in this case. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Neilson, 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.