BVA9502311 DOCKET NO. 94-02 141 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an extension of delimiting date for use of Chapter 32 educational assistance benefits. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD P. B. Werdal, Associate Counsel INTRODUCTION The veteran served on active duty from January 1979 to January 1982. This matter came before the Board of Veterans' Appeals (Board) of the Department of Veterans Affairs (VA) on appeal from a decision letter dated October 17, 1991, from the Chicago, Illinois, Regional Office (RO). The notice of disagreement was received in May 1992. The statement of the case was sent to the veteran in August 1992. A document received in October 1992 was accepted as the veteran's substantive appeal. CONTENTIONS OF APPELLANT ON APPEAL The veteran sustained a left thumb injury at work in October 1986, and asserts he was disabled by that injury until December 1988 and was unable to use his Chapter 32 educational assistance benefits during that period. He also asserts that he was disabled by a psychiatric disorder that resulted from his mother's cancer-related death, but did not identify the dates of that disability. He also asserts that he suffered a psychiatric disability secondary to his thumb injury. In addition, he claims he is disabled by a left eye disability that renders him legally blind in the left eye, apparently a problem from which he has suffered from many years. He asks that he be afforded the benefit of the doubt. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran is not entitled to an extension of delimiting date due to medical infeasibility. FINDINGS OF FACT 1. The veteran's delimiting date for Chapter 32 educational assistance benefits was January 23, 1992. 2. The veteran requested an extension of his delimiting date in December 1990. 3. The veteran did not suffer from a disability that made it medically infeasible to pursue a program of education prior to his delimiting date. CONCLUSION OF LAW The veteran is not entitled to an extension of his delimiting date. 38 U.S.C.A. § 3232 (West 1991); 38 C.F.R. § 21.5042 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Educational assistance benefits under Chapter 32, Title 38, United States Code, are available to veterans for qualified programs for a period of ten years following separation from service. 38 U.S.C.A. § 3232(a) (West 1991. An extension of that ten year period is available if the veteran is prevented from initiating or pursuing a program of education because of disability that is not the result of his own willful misconduct. 38 U.S.C.A. § 3232(a)(2) (West 1991). The length of the period of extension will be the length of time the Secretary determines the veteran was prevented from initiating or completing such program of education. 38 U.S.C.A. § 3232(a)(2)(B) (West 1991); 38 C.F.R. § 21.5042(c) (1993). Evidence must be presented which clearly establishes that the veteran's disability made pursuit of his program medically infeasible during his original period of eligibility. 38 C.F.R. § 21.5042(c)(3) (1993). The veteran served on active duty from January 1979 to January 1982. His delimiting date for use of Chapter 32 educational assistance benefits was January 22, 1992. 38 U.S.C.A. § 3232(a) (West 1991). In November 1982 and February 1983 he was awarded Chapter 32 benefits for enrollment periods totaling approximately five months. He worked from 1985 to 1987 as a pilot plant technician. That position required some heavy lifting, pushing, and some mixing of chemicals. The veteran, who is right-handed, argues that not until he injured his left thumb on the job in 1986 did he even consider using Chapter 32 benefits again, as up until that point he was successfully pursuing a career. However, when he sustained the thumb injury in October 1986 he states he was advised to leave that career and pursue one that did not require use of his left thumb. He testified that he also is disabled by a left eye disability, which renders him legally blind in the left eye. In addition, he testified that his mother died from cancer in 1989 and he suffered a psychiatric disability as the result of that event so that he was unable to begin his bachelor's degree program for a period of time after her death, although he did not provide information regarding the length of time he was impaired by that disability. He also claims that he sustained a psychiatric disability as the result of his left thumb injury and the treatment for that injury, but did not specify the dates of that disability. At his hearing in August 1993 he testified that he continued to work full-time after he sustained the thumb injury until he was laid off in November 1987 when his employer completed the project that employed him and moved its operation to a new location. The Board has considered whether the evidence supports a finding of fact that it was medically infeasible for the veteran to pursue a program of education. The veteran has identified the bases for his claim of medical infeasibility as his left thumb injury, his decreased visual acuity of the left eye, a psychiatric problem secondary to his mother's illness and death, and a psychiatric problem secondary to his thumb disability. In support of his claim that he suffers a disability of the left eye, the veteran submitted a copy of a letter dated in April 1985 from Carolyn S. Oesterle, M. D., who reported that the veteran had strabismus surgery as a child, and that he now has amblyopia in the left eye. He claims that it takes him longer to read because he cannot use his left eye. However, the evidence shows that the eye disorder has been present since childhood, and the Board notes that the veteran began his bachelor's degree program in September 1990 and graduated from it in May 1993, attending classes on a three-quarters or full-time basis throughout his pursuit of a degree. Thus, the veteran had this eye disorder in the period in which he successfully pursued his academic program. He does not argue, and the evidence does not show, that the eye disorder was worse from 1986 to 1990. The Board finds no support in the record for the veteran's claim that his decreased visual acuity made pursuit of a program of education medically infeasible. The veteran testified at a hearing before a member of the Board in January 1994. In his testimony, the veteran presented an explanation of the effects of his thumb injury and asserted that the injury had a psychological as well as a physical impact on his life. With regard to the veteran's claim that he experienced psychiatric disabilities as the result of his mother's illness and death, or due to his own thumb injury and treatment, the veteran submitted no medical evidence that he suffered a psychiatric disability at any time during his period of eligibility. The burden imposed by 38 U.S.C.A. § 5107(a) (West 1991) is not met by presenting lay evidence from persons who are not competent to offer medical opinions. As the United States Court of Veterans Appeals held, just as the Board must point to a medical basis other than its own unsubstantiated opinion, the appellant cannot meet his burden by relying upon his own unsubstantiated opinions as to medical matters. Espiritu v. Derwinski, 2 Vet.App. 492 (1992); Layno v. Brown, 6 Vet.App. 465 (1994). Consequently, lay assertions, such as the veteran's, of medical causation and diagnosis cannot constitute evidence to render a claim well grounded. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). Accordingly, the evidence does not support the veteran's assertion that a psychiatric disability made pursuit of a program of education medically infeasible. With regard to the veteran's claim that his left thumb injury made pursuit of a Chapter 32 program medically infeasible, the Board has reviewed the medical evidence submitted by the veteran. Medical records from Walter Reeder, M. D., the physician who treated the veteran's left thumb injury from October 1986 to March 1987 are in the claims folder. They reveal that the veteran was first treated on October 24, 1986, for an injury sustained when his left thumb got caught at work. The examiner noted a little swelling and tenderness over the thumb. Mobility was reasonably good, and there was no gross instability noted. Color, motor, and sensation were intact. X-rays reportedly revealed no abnormalities. The examiner's impression was that the veteran had a first degree sprain. The veteran was seen monthly by that examiner, and his reported symptoms persisted during that period, improving only somewhat. He received a cortisone injection on two occasions. The examiner reported that he believed the veteran was malingering, and believed his complaints were not consistent with the injury. In a report dated in March 1987, the examiner concluded that the veteran did have some mild irritation of his left thumb, but that he was not incapacitated by the symptoms and had continued to work. The veteran next received treatment from Orhan Kaymakcalan, M. D., a hand and microvascular surgeon, who treated him from March 1987 to August 1989. Throughout that period, the physician reported the veteran was never totally disabled, but that he was partially disabled by his thumb disability. In March 1987 Dr. Kaymakcalan examined the veteran and referred him to another physician, then performed surgical repair of the left ulnar collateral ligament in April 1987, and prescribed physical and occupational therapy. Dr. Kaymakcalan's records reveal that the veteran continued to complain of pain even after the surgery. They also report that the plant at which the veteran worked was being closed, and that he was in a job training program. The therapy sessions began in June 1987, and were increased from one visit per week to three. Throughout that treatment the veteran complained of pain in the thumb, at rest and with use; the levels of pain fluctuated daily. The physical therapist recommended, and the physician prescribed, a transcutaneous electric-neuro stimulation (TENS) unit. However, the TENS unit reportedly provided minimal pain relief. The veteran's range of motion improved with therapy, but by October 1987 the therapist noted that range of motion was limited by the veteran's complaints of pain. The veteran was unable to pick up an object like a lima bean with his left thumb and forefinger. The therapist reported that unless the veteran could tolerate some stretching exercises, continued therapy would not be helpful. However, the veteran did continue his therapy sessions until approximately December 1987. His treating physician reported in July 1988 that the veteran was going to school. In August 1988 the veteran participated in a work hardening program, and told a physician involved in that program that he was at that time attending a job training program in accounting at Harper College. In September 1990 he again applied for Chapter 32 benefits, and was awarded those benefits while he pursued a bachelors degree at the University of Illinois, which he completed in May of 1993. He was reminded that his delimiting date for use of those benefits was January 23, 1992. In a letter dated in December 1990 he requested an extension of that delimiting date. The Board has considered the evidence of record. It is clear that the veteran suffered an injury to his left thumb in October 1986, and that treatment continued for several years after the injury and included surgical repair of the collateral ulnar ligament. However, it is not clear that the injury made it medically infeasible for him to use his Chapter 32 benefits. The veteran is right-handed, and the injury involved the left thumb. Despite the injury in October 1986 and a thumb operation in April 1987, he continued to work until June 1987. Although he contends that therapy sessions prevented him from pursuing an academic program in the period following his operations, he offers no explanation as to why he could not schedule his three therapy sessions per week to accommodate an academic program. Likewise, it is clear that the veteran has decreased visual acuity in the left eye, but it does not appear that that condition made use of Chapter 32 benefits medically infeasible, as the veteran pursued his bachelors degree at a vigorous rate. With regard to the veteran's claim that he suffered a psychiatric disability attributable to his mother's illness or death, or to his thumb injury or treatment, the veteran has submitted no medical evidence to support such a claim. When all the evidence is taken into account, it does not support a finding that a disability or disabilities made it medically infeasible for the veteran to pursue a program of education during his period of eligibility. 38 U.S.C.A. § 3232 (West 1991); 38 C.F.R. § 21.5042 (1993). Accordingly, there is no legal basis for an extension of the veteran's delimiting date, and the appeal is denied. The positive and negative evidence is not in equipoise. Therefore, the doctrine of the benefit of the doubt is not applicable. 38 U.S.C.A. § 5107(b) (West 1991). ORDER The appeal is denied. G. H. SHUFELT EUGENE A. O'NEILL Member, Board of Veterans' Appeals Member, Board of Veterans' Appeals J. U. JOHNSON Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.