Citation Nr: 21026026 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 18-31 941 DATE: April 29, 2021 ORDER Entitlement to an extension of the delimiting date, beyond November 24, 2017, for educational assistance benefits under Chapter 33, Title 38, U.S.C. (also known as the Post-9/11 GI Bill), is denied.   FINDING OF FACT Prior to November 24, 2017, the Veteran was not prevented from initiating or completing his chosen program of education due to a physical and/or mental disability, to include due to his service-connected posttraumatic stress disorder (PTSD). CONCLUSION OF LAW The criteria for an extension of the delimiting date for education benefits under Chapter 33 beyond November 24, 2017 are not met. 38 U.S.C. §§ 3031, 3321; 38C.F.R. §§21.1033, 21.9530, 21.9535. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1998 to November 2002. The case is on appeal from a May 2018 VA decision which denied an extension of the delimiting date for educational assistance benefits under Chapter 33. Most recently, in a December 2020 decision, the Board remanded the present matter for further development and adjudication in compliance with an August 2020 Order from the United States Court of Appeals for Veterans Claims (Court), on the basis of an August 2020 Joint Motion for Remand (JMR). The Board has limited the discussion below to the relevant evidence required to support its finding of fact 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). An extension of the delimiting date for educational assistance benefits under the Post 9/11 GI Bill beyond November 24, 2017. As noted in the December 2020 Board remand, service personnel records (SPRs) reflect that the Veteran was released from active duty on November 23, 2002. As the Veteran was released from active duty service prior to January 1, 2013, the amendments pertaining to the elimination of the 15-year delimiting period pursuant to Pub. L. 115-48 (also known as the Harry W. Colmery Veterans Educational Assistance Act of 2017) are not applicable to the present case. Thus, the Veteran’s delimiting date was November 23, 2017, which is 15 years following the date of separation from active duty service. See 38 C.F.R. § 21.9530(a). In other words, the Veteran had from November 23, 2002, to November 23, 2017, to pursue his education goals. Notwithstanding the above, the period of eligibility for Post 9/11 GI Bill educational benefits may be extended under the circumstances enumerated in 38 U.S.C. §§ 3031(b) through (d) as referenced by 38 U.S.C. § 3321(b). See 38 U.S.C. §§ 3321(b); 3031(b) change in nature of discharge; (c) detention by a foreign government; and (d) existence of physical or mental disability. Here, the Veteran does not contend nor does the record otherwise reflect that the provisions of 38 U.S.C. §§ 3031(b) or (c) are applicable to this case. In this case, the Veteran specifically contends that he was not able to pursue his academic goals before the 15-year delimiting period following discharge from active duty service because of his service-connected PTSD. See January and February 2018 statements. Such contentions are encompassed within the provisions of 38 U.S.C. § 3031(d). By way of background, in a June 2019 decision, the Board denied the claim of extension of the delimiting date for the education benefits set forth above. The Veteran appealed the case to the Court and in an August 2020 Order, the Court vacated and remanded the claim on the basis of an August 2020 JMR. Consequently, in a December 2020 decision, the Board remanded the preset matter for further development in compliance with the August 2020 JMR, to include to afford the Veteran a VA psychiatric examination and to obtain a retrospective opinion to describe the symptoms and severity (occupational and social functioning) of the Veteran’s PTSD prior to November 24, 2017, and to the extent possible, comment on the onset date of the current severity level and whether or not the reported symptoms prevented the Veteran from initiating a chosen program of education from a medical perspective. Pursuant to the Board’s December 2020 remand, the Veteran was afforded a VA examination in January 2021 via teleconference. The VA examiner, a clinical psychologist, confirmed that the Veteran’s PTSD causes occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and or mood. The examiner added that various medical records prior to November 24, 2017 documents PTSD symptoms such as vigilant behavior, sleep impairment, including periodic nightmares, recurrent memories, depression, anxiety, agitation, occasional flashbacks, anger and impairment on concentration. However, the examiner noted a December 2, 2020 VA progress note which accounts for the same symptoms during a time when the Veteran self-reported that he was pursuing his master’s degree (2018-2020) in order to grow in his career. In light of the foregoing, the examiner stated that while the Veteran’s service-connected disabilities have caused some difficulties with aspects of his employment, his accomplishments in his career since discharge from the service demonstrates that he has overcome such impairment through education and employment. Hence, it is not likely as not (50% or less probability) that the reported symptoms prevented the Veteran from initiating a chosen program of education from a medical perspective during the period in question. In support of the above, the examiner made reference to the Veteran’s January 2018 statement in support of his claim indicating multiple reasons why he was not able to use his Post 9/11 GI Bill benefits prior to November 24, 2017. First, the Veteran stated that prior to that date he still had to work full-time and attend mental health treatment meetings; second, he stated that he and his spouse had their first child and that the timing was impractical and really impossible for him to apply to the master’s program he wished to pursue. Ultimately, the Veteran also stated that the reason he did not apply for his benefits earlier was because he was required to have 10 to 15 years of professional experience prior to applying to a Master of Science (MS) degree. The examiner noted that during the telehealth examination the Veteran reported that from 2002 to 2017, he was physically and mentally unable to pursue his chosen program of education. Nonetheless, the examination report not only reflects that from 2003 to 2005 he was able to complete his undergraduate degree at the University of San Francisco, but that the Veteran previously stated that the reason why he was not able to pursue his MS degree earlier was, in pertinent part, because he had not fulfilled the 10-15-year professional experience requirement in order to apply for such degree. The examiner concluded that despite it is difficult to definitely ascertain from the medical records the onset date of the Veteran’s current severity level of functioning, upon review of the entire Veteran’s claims file, to include his medical history, treatment, statements and other lay evidence which suggests that the Veteran’s service-connected disabilities have caused some difficulties with aspects of his occupational and social functioning, the Veteran’s accomplishments in his career since discharge from service and the fact that he has been employed in the field of data/cyber security for approximately 13 years and is currently suitably employed in a stable position, demonstrates that he has overcome such impairment and that the reported symptoms did not necessarily prevented the Veteran from initiating a chosen program of education. That Board has considered the evidence of record in light of the August 2020 JMR and finds that the January 2021 VA opinion is persuasive as to the question of whether the Veteran’s PTSD prevented him from initiating a chosen program of education. As noted and confirmed by the VA psychologist, the medical evidence of record reflects that the Veteran’s PTSD symptoms, indeed, caused some difficulties with aspects of his occupational and social functioning. Nevertheless, the VA psychologist pointed out that such difficulties were not the sole reason that prevented the Veteran from initiating his desired MS degree prior to the delimiting period of November 24, 2017. In that regard, the examiner cited to the Veteran’s own statements indicating that there were multiple factors which prevented him from initiating and/or pursuing the master’s program he wished to pursue. As detailed above, he noted the fact that he had to continue working full-time, had to have 10 to 15 years professional experience before applying to the program, and that he had had his first child around the same time. None of the foregoing are contemplated under 38 C.F.R. § 3031 as circumstances to extend the delimiting date for VA educational assistance benefits. Now, with particular consideration to the effect of his PTSD and associated symptoms alone over his occupational and social functioning, the January 2021 VA examiner opined that the difficulties caused by the Veteran’s PTSD were outweighed by the Veteran’s accomplishments in his career since discharge from service, particularly after considering that he has been employed for over 13 years in the data/cyber security field. While the evidence shows that his PTSD symptoms caused him occupational and social impairment in most areas, to include work and/or school for the period prior to November 24, 2017, it is also noted that it did not necessarily interfere with the Veteran’s performance, for which the January 2021 VA psychologist opined that his PTSD was not the sole reason that prevented him from initiating a chosen program of education prior to the delimiting date. Moreover, the Board notes that ever since November 24, 2017, the Veteran’s PTSD has continued to cause him occupational and social impairment in most areas, to include in work and school like settings. See January 2021 VA examination. To this day, the Veteran still continues to report symptoms such as depressed mood, anxiety, panic attacks, chronic sleep impairment, flattened affect, difficulty in understanding complex commands, impaired judgement, disturbances of motivation and mood, difficulty adapting to stressful circumstances, and obsessional rituals. Nevertheless, a December 2018 notice of disagreement (NOD) reflects that despite the PTSD symptoms experienced, the Veteran was still able to apply and was accepted for the fall semester of 2018 to pursue a Master’s in cyber security. See also March 2019 VA Form 9; and Brown University letter of acceptance received in August 2020. The evidence does not reflect that the Veteran has not been able to accomplish his educational goals by reason of his PTSD symptoms at any time since his acceptance in 2018. In sum, the Board finds that for the period prior to November 24, 2017, the Veteran’s PTSD alone did not prevent him from initiating a chosen program of education. The weight of the evidence reflects that while his PTSD may have been one of multiple factors, it was the combinations of multiple factors what prevented him from initiating or otherwise pursuing his education goals. As the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved and entitlement to an extension of the delimiting date beyond November 24, 2017, for educational assistance benefits under Chapter 33, is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Pagan-Diaz, William 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.