Citation Nr: 0812133	
Decision Date: 04/11/08    Archive Date: 04/23/08

DOCKET NO.  06-03 789A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, 
Missouri


THE ISSUE

Entitlement to payment for correspondence courses as 
Survivors' and Dependents' Educational Assistance benefits 
under Chapter 35, Title 38, United States Code.




ATTORNEY FOR THE BOARD

K. Hughes, Counsel




INTRODUCTION

The veteran served on active duty from January 1967 to 
January 1969.  The appellant is his daughter.  She appealed 
to the Board of Veterans' Appeals (Board) from a May 2005 
decision by the Department of Veterans Affairs (VA) Regional 
Office (RO) in St. Louis, Missouri.


FINDINGS OF FACT

1.  In a May 2003 decision, the veteran received a permanent 
and total (P&T) disability rating, retroactively effective 
from August 26, 1997.

2.  The appellant, his daughter, filed VA Form 22-5490, 
Application for Survivors' and Dependents' Educational 
Assistance (DEA) benefits with VA in October 2003; the 
application reflects that she had attended Colorado State 
University and Regis University and that she already had 
graduated in May 2003.

3.  In a November 2003 statement, the appellant indicated 
that she had elected August 26, 1997 as the beginning date 
for her DEA benefits.

4.  The appellant was subsequently provided a Certificate of 
Eligibility for an approved program of education or training 
under the DEA program on a full-time basis for a total of 45 
months, beginning retroactively from August 26, 1997 
until August 2005.

5.  Thereafter, the appellant received retroactive payments 
for training at Colorado State University beginning in 
January 2000 and ending in April 2003.



6.  In March 2005, VA received from the appellant VA Form 22-
1995, Request for Change of Program or Place of Training, 
indicating she intended to pursue the field of medical 
billing in a program called Medical Billing Plus 
by correspondence with At-Home Professions.


CONCLUSION OF LAW

The appellant is not entitled to payment of educational 
assistance benefits under Chapter 35, for correspondence 
courses.  38 U.S.C.A. §§ 3501, 3534 (West 2002); 38 C.F.R. 
§§ 21.3130, 21.4252 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

As a preliminary matter, the Board notes that the agency of 
original jurisdiction (AOJ, i.e., the RO) has a duty to 
notify and assist the appellant under 38 U.S.C.A. § 5103 
(West 2002) and 38 C.F.R. § 3.159 (2007).  It does not 
appear, however, that these duties are applicable to claims 
such as the one at issue.  Cf. Barger v. Principi, 16 Vet. 
App. 132 (2002).  In Barger, the U.S. Court of Appeals for 
Veterans Claims (Court) held that these expanded duties are 
not applicable to cases involving the waiver of recovery of 
overpayment claims, pointing out that the statute at issue in 
those type cases was not found in Title 38, United States 
Code, Chapter 51.  And similarly, the statutes at issue in 
this appeal are not found in Chapter 51 (but rather, in 
Chapter 35).  Note also that these notice and duty to assist 
provisions do not apply where, as here, the issue presented 
is one of statutory interpretation and/or the claim is barred 
as a matter of law.  See Smith v. Gober, 14 Vet. App. 227, 
230 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. 
denied, 537 U.S. 821 (2002).  See, too, VAOPGCPREC 
5-2004 (June 23, 2004).

In a May 2003 decision, the veteran was determined to be 
permanently and totally disabled due to his service-connected 
disability, retroactively effective from August 26, 1997, 
thereby establishing basic eligibility for Chapter 35 DEA 
benefits from that effective date for his dependents.

For purposes of Chapter 35 benefits, the appellant is an 
eligible child as set forth at 38 C.F.R. § 21.3021 (2007).  
The appellant submitted VA Form 22-5490, Application for 
Survivors' and Dependents' Educational Assistance benefits, 
in October 2003; the application reflects that she had 
attended Colorado State University and Regis University and 
that she already had graduated in May 2003.  The application 
also contained a direction to read the instructions attached 
to the application form.  The instructions to VA Form 22-5490 
clearly state that sons and daughters are ineligible for 
correspondence training.  This appeal involves the question 
of whether VA educational benefits are payable for any or all 
of this training.

Following the receipt of her application, the RO issued the 
appellant a Certificate of Eligibility.  This document 
certified she was entitled to enroll in and pursue a program 
of educational training under the Dependents' Educational 
Assistance program on a full-time basis for a total of 45 
months, beginning retroactively from August 26, 1997 until 
August 2005.  

Accordingly, the appellant subsequently received retroactive 
payments for training at Colorado State University beginning 
in January 2000 and ending in April 2003.

In March 2005, VA received from the appellant VA Form 22-
1995, Request for Change of Program or Place of Training, 
indicating she intended to pursue the field of medical 
billing in a program called Medical Billing Plus 
by correspondence with At-Home Professions.  

In May 2005, the RO informed the appellant that VA would not 
pay for her Medical Claims and Billing Specialist 
correspondence course at At-Home-Professions.  This appeal 
ensued.

In her notice of disagreement (NOD), received in September 
2005, the appellant explained that she had enrolled in the 
program only after receiving instructions and assurances from 
VA personnel.  She did so thinking that she would be 
reimbursed by VA.  She argues that VA therefore should pay 
for her Medical Claims and Billing Specialist correspondence 
course at At-Home-Professions because she was assured by VA 
personnel that she would receive benefits for the course.  

In the May 2005 notice of denial, the RO explained that the 
law does not allow VA to pay education assistance for 
correspondence courses pursued by children who qualify for 
benefits under the Dependents Educational Assistance program 
(Chapter 35).  Similarly, the January 2006 statement of the 
case (SOC) explained that Medical Claims and Billing 
Specialist is a correspondence training program with At-Home-
Professions and is not approved for eligible children under 
Chapter 35, Title 38, United States Code.  

Any eligible spouse or surviving spouse shall be entitled to 
pursue a program of education exclusively by correspondence 
and be paid an educational assistance allowance as provided 
in 38 U.S.C.A. § 3686.  38 U.S.C.A. § 3534 (West 2002).  
However, VA will not approve the enrollment of an eligible 
child under 38 U.S.C. Chapter 35 in a correspondence course 
or the correspondence portion of a correspondence-residence 
course.  38 C.F.R. § 21.4252(e)(2) (2007).



In view of this applicable law, it is clear that the 
appellant's course of study with At-Home-Professions 
consisted of courses that were not the type for which VA 
will pay an eligible child.  The regulations binding on VA 
unequivocally preclude payment for correspondence courses 
taken by an eligible child.  The appellant has not disputed 
that her studies with At-Home-Professions were entirely 
correspondence courses.  Rather, she urges that she was 
assured by VA personnel that she would receive benefits for 
these courses.  But the fact remains that the RO never 
certified her as eligible for correspondence courses.  And it 
is also worth reiterating that the instructions attached to 
VA Form 22-5490 clearly state that "[s]ons and daughters are 
not eligible for correspondence training."  Once it was 
learned that the courses were correspondence courses, the 
appellant was informed that payment was not allowed.  

Thus, while the Board acknowledges the appellant's 
contentions that the information provided to her by VA 
personnel was misleading, the Board must emphasize that there 
are specific criteria as set forth by the applicable law in 
this case that must be met in order for an individual to 
receive payment under Chapter 35.  And there is simply no 
disputing that the training for which the appellant sought 
approval in March 2005 simply does not meet these criteria.  
The controlling statue does not provide for payment under 
these circumstances and the regulation specifically precludes 
such payments.  In the absence of satisfaction of the 
governing statutory eligibility criteria established by 
Congress, misinformation is not a basis for entitlement.  See 
Harvey v. Brown, 6 Vet. App. 416 (1994).  Therefore, the 
appellant's claim must be denied.



The Board is bound by the laws enacted by Congress, and the 
applicable VA regulations, and is not free to ignore or make 
exceptions to these laws.  So in conclusion, as explained, 
there is no legal basis for an award of educational 
assistance benefits pursuant to Chapter 35, Title 38, United 
States Code, to an eligible child, for enrollment in 
correspondence courses, and the appellant's claim therefore 
must fail.  See Sabonis v. Brown, 6 Vet. App. 426 (1994) 
(where the law is dispositive, the claim should be denied on 
the basis of the absence of legal merit).


ORDER

The appeal is denied.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs