Citation Nr: 21025615 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 19-15 103 DATE: April 28, 2021 REMANDED Entitlement to an extension of the delimiting date for education benefits under Chapter 30, Title 38, United States Code (Montgomery GI Bill (MGIB)) beyond June 12, 2008 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from June 1992 to December 1992. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2017 determination by the Department of Veterans Affairs (VA) Regional Office in Buffalo, New York. The Veteran was previously represented by Disabled American Veterans; however, she revoked that representation in an August 2020 written statement. She is now proceeding pro se. In October 2020, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record.  Entitlement to an extension of the delimiting date for education benefits under Chapter 30, Title 38, United States Code, beyond June 12, 2008 is remanded. The Veteran’s basic eligibility for education benefits under Chapter 30 (MGIB) is not in dispute. Rather, she seeks an extension of the Chapter 30 delimiting date for the award of MGIB education benefits. Generally, the law provides a 10-year period of eligibility during which an individual may use his or her entitlement to educational assistance benefits; that period begins on the date of a veteran’s last discharge from active duty. 38 U.S.C. § 3031(a); 38 C.F.R. § 21.7050(a). Regulations allow for an extension of the 10-year delimiting period of eligibility under the Chapter 30 (MGIB) if the claimant applies for an extension within one year of the time when the original eligibility ended or within one year of the time when a physical or mental disability no longer prevented him or her from beginning or resuming a program of education. 38 C.F.R. § 21.1033(c), 21.7051(a)(1). A claimant must establish that he or she was prevented from initiating or completing his or her chosen program of education within the otherwise applicable eligibility period because of a physical or mental disability that did not result from his or her own willful misconduct. 38 C.F.R. §§ 21.1033, 21.7051(a). The regulations further provide that it must be clearly established by medical evidence that a program of education was medically infeasible. 38 C.F.R. § 21.7051(a)(2). The Board notes that the Veteran was previously granted an extension of her delimiting date for Chapter 30 (MGIB) benefits because of disability. As detailed in a February 2019 statement of the case (SOC), and other documents of record, a May 2017 decision determined that she was entitled to an extension of her original delimiting date for Chapter 30 benefits due to disability, which resulted in the current delimiting date of June 12, 2008. The agency of original jurisdiction (AOJ) indicated that this was the date her disability no longer prevented her from beginning or resuming a chosen program of education. In denying the Veteran’s claim for a further extension, the AOJ found that her request for further extension was untimely as it was not filed within one year of June 12, 2008. Here, the Veteran has contended, in pertinent part, that she was unable to use her benefits in a timely manner due to disability, particularly her acquired psychiatric disorder, which was present throughout the delimiting period. In this regard, the Board points out that requests for an extended period of eligibility under Chapter 30 must be filed by the later of the following dates: One year from the date when the eligible individual’s original period of eligibility ended; or, one year from the date on which the eligible individual’s physical or mental disability no longer prevented him or her from beginning or resuming a chosen program of education. 38 C.F.R. § 21.1033(c). Here, there is no question that the Veteran’s request for a further extension of her eligibility period for use of her Chapter 30 benefits was not filed within a year of the June 12, 2008 delimiting date. Thus, her case turns on whether she was prevented from initiating a program of education within the otherwise applicable eligibility period because of a physical or mental disability that did not result from her willful misconduct and, if so, whether it is clearly established by medical evidence that such a program of education was medically infeasible. In this regard, it is not clear from the evidence currently of record whether a physical or mental disability prevented the Veteran from initiating or completing her chosen program of education within the otherwise applicable eligibility period. In pertinent part, she has emphasized impairment related to an acquired psychiatric disorder, including periods of outpatient therapy and hospitalization. She has also asserted continuing issues with diabetes, high blood pressure, and a hypothyroid condition. The regulations provide that it must be clearly established by medical evidence that a program of education was medically infeasible. 38 C.F.R. § 21.7051(a)(2). For that reason, the Board concludes that a remand is required to obtain a medical opinion addressing whether the Veteran’s participation in a program of education was medically infeasible, and if so, for how long. Additionally, the Board notes that there is an indication that potentially relevant documentation concerning the severity of the Veteran’s medical conditions remains outstanding. Specifically, she has indicated receiving treatment at various facilities, including Robert Wood Johnson Hospital, St. Peter’s Hospital, and McDowell Drug Residence. See October 2020 hearing transcript. Because such records, if obtained, could bear on the outcome of the Veteran’s appeal, efforts must be made to procure them. See, e.g., 38 C.F.R. § 3.159(e)(2). This matter is REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to her medical and psychiatric limitations, including from Robert Wood Johnson Hospital, St. Peter’s Hospital, and McDowell Drug Residence. If she provides the necessary release(s), assist her in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran should be notified. 2. After the foregoing development has been completed to the extent possible, arrange to have an appropriately qualified clinician review the claims file. After reviewing the record, the clinician must render an opinion as to whether the Veteran’s physical and mental health conditions, including but not limited to her service-connected acquired psychiatric disorder, made it medically infeasible for her to initiate or complete a chosen program of education during any portion of the pertinent eligibility period. If such was medically infeasible for only a portion of time frame, the clinician should specify, to the extent possible, the beginning and ending date(s) of the period(s) during which the Veteran was medically unable to pursue an educational program. If such was medically infeasible for a period extending beyond her current delimiting date (June 12, 2008), the clinician should specify, to the extent possible, when the Veteran’s disability no longer prevented her from beginning or resuming a program of education. The need for an examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner selected to offer the requested opinions. A complete rationale for all opinions expressed should be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran should be issued a supplemental SOC. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Kettler, 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.