Citation Nr: A21009741 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 190628-30225 DATE: May 24, 2021 ORDER An extension of the delimiting date beyond February 13, 2019, 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 was last separated from active duty service on February 12, 2004, after more than 90 days of continuous active duty service; his period of eligibility for Chapter 33 education benefits expired on February 13, 2019. 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 on active duty in the United States Army from January 1971 to January 1974. He had additional service in the United States Air Force Reserve, which service included a period of active duty from August 24, 1990, to August 23, 1991, as well as in the Army National Guard and United States Army Reserve, which service included a period of active duty from December 13, 2002, to February 12, 2004. This appeal before the Board of Veterans' Appeals (Board) arose from a June 2019 determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, that a change in its prior determination that an extension of the Veteran's delimiting date, beyond February 13, 2019, was not warranted. In this regard, the Board notes that, according to the June 2019 rating decision, the Veteran's claim was originally denied by the RO in February 2019. (The Board notes, however, that a copy of the February 2019 determination is not of record). In May 2019, the Veteran filed a Supplemental Claim. Although in its June 2020 decision, the RO did not explicitly determine that new and relevant evidence had been received, the RO did reconsider its prior decision, noting that it had "reviewed evidence from [the Veteran's] service component on June 17, 2019." Given that the February 2019 decision has not been made available for review by the Board and because the RO reconsidered its prior decision, the Board concludes that the RO implicitly determined that new and relevant evidence had been received to warrant re-adjudicating the previously denied claim; the Board will not disturb this favorable finding and will therefore proceed to the merits of the claim on appeal. On June 28, 2019, the Veteran filed a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) in which the Veteran elected the Hearing docket. The Veteran was originally scheduled for a hearing to be held on October 21, 2020; however, records indicate that that hearing was postponed. The Veteran's requested hearing was then rescheduled for January 13, 2021. Notification of that hearing was sent to the Veteran on November 27, 2020; however, the Veteran did not appear for the rescheduled Board hearing. Therefore, the Board may only consider the evidence of record at the time of the supplemental claim decision on appeal, as well as any evidence submitted by the Veteran within 90 days following the date of the scheduled hearing. 38 C.F.R. § 20.302(c). In this regard, the Board notes that in November 2019, the Veteran submitted a statement in which he asserted that he was unable to initiate a program of study due to health issues. The Veteran's statement was accompanied by medical records, to include a statement from his private physician. Unfortunately, because this evidence was not received within 90 days of the Veteran's scheduled hearing date of January 13, 2021, the Board may not consider this evidence. 38 C.F.R. §§ 20.302(c). The Veteran may, however, file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 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. A review of the record shows that in January 2017, the Veteran was awarded entitlement to Chapter 33 educational assistance benefits. At that time, the Veteran was informed that he was entitled to receive 60 percent of the benefits payable and that he had until February 13, 2019, to use his benefits. 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/her last discharge or (ii) the date of his/her release from a period of 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 February 12, 2004. His period of eligibility for Chapter 33 educational assistance benefits thus expired on February 13, 2019. The Veteran has requested an extension of his delimiting date on the basis that the program he was enrolled in extended beyond February 13, 2019. 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. Indeed, 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). Additionally, the medical evidence for consideration in this case does not suggest that the Veteran's own mental or physical disability prevented him from initiating or completing his program of education. 38 C.F.R. § 21.9535(a). In this regard, the Board again notes that in November 2019, the Veteran submitted correspondence in which he argued that that he was prevented from initiating a program of study on account of health issues, to include prostate cancer. Although the medical records reviewable by the Board show that the Veteran was diagnosed with prostate cancer in August 2016, there is no evidence in those records to suggest that the Veteran's prostate cancer prevented him from initiating or completing his program of education. Id. The Board stresses that it may not consider the additional evidence provided by the Veteran along with his November 2019 correspondence, as such evidence was received outside of the evidentiary window in this appeal. 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 February 13, 2019. 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). (Continued on the next page) 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 February 2004. Thus, this provision is not applicable in this case. K. Conner 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.