Citation Nr: 1120948 Decision Date: 05/31/11 Archive Date: 06/06/11 DOCKET NO. 09-32 254A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to payment of educational assistance benefits under Chapter 30, Title 38, United States Code, for a signal apprentice program with the Burlington Northern & Santa Fe Railway prior to December 1, 2007. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from July 2001 to June 2007. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a determination by the Department of Veterans Affairs (hereinafter VA) Regional Office in Muskogee, Oklahoma, (hereinafter RO). While the statement of the case and informal hearing presentations lists the issue as entitlement to benefits under Chapter 30 for the period after February 17, 2008, in addition to entitlement to such benefits prior to December 1, 2007, an adjustment by the RO has actually extended Chapter 30 benefits to the Veteran for a period beyond February 17, 2008, to August 25, 2008, which is the undisputed termination date of the Veteran's apprentice program with the Burlington Northern & Santa Fe Railway. As such, and given the Veteran's desire to be paid Chapter 30 benefits under his apprentice program with the Burlington Northern & Santa Fe Railway rather than a program of education with Penn Foster College for which Chapter 30 benefits had previously been provided, the only matter remaining on appeal is as listed on the title page. See April 13, 2009, Report of Contact. The Veteran's representative also appears to have raised a question of a waiver of recovery of an overpayment of benefits. That matter has not been perfected on appeal and is referred to the RO for appropriate action. FINDING OF FACT VA did not receive an application for benefits under Chapter 30, Title 38, United States Code, for a signal apprentice program with the Burlington Northern & Santa Fe Railway until December 1, 2008. CONCLUSION OF LAW The criteria for benefits under Chapter 30, Title 38, United States Code, for a signal apprentice program with the Burlington Northern & Santa Fe Railway prior to December 1, 2007 are not met. 38 U.S.C.A. § 3031 (West 2002); 38 C.F.R. § 21.7131 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION As explained below, the pertinent facts in this case are not in dispute and the law is dispositive. Consequently, there is no additional evidence that could be obtained to substantiate the claim, and no further action is required to comply with the Veterans Claims Assistance Act of 2000. See Manning v. Principi, 16 Vet. App. 534, 542 (2002); VAOPGCPREC 5-2004 (June 23, 2004). Educational assistance benefits are available to a Veteran who first becomes a member of the Armed Forces or first enters on active duty as a member of the Armed Forces after June 30, 1985, and who served at least three years of continuous active duty or in the case of an individual whose initial period of active duty is less than three years, serves at least two years of continuous active duty. 38 U.S.C.A. § 3011. The Veteran's ENROLLMENT CERTIFICATION FOR TRAINING OTHER THAN APPRENTICESHIP OR OTHER ON-THE JOB, FLIGHT OR CORRESPONDENCE TRAINING, VA Form 22-1999 for an educational program from February 18, 2008, to February 18, 2009, with Penn Foster College was received in April 2008 and approved by a determination in that month by the RO. The Veteran withdrew from the program on July 22, 2008, and the Chapter 30 benefits for this program were ultimately terminated effective from that date by the RO in an October 2008 determination. On December 1, 2008, an ENROLLMENT CERTIFICATION FOR APPRENTICESHIP OR OTHER ON-THE JOB, FLIGHT OR CORRESPONDENCE TRAINING, VA Form 22-1999, for a signal apprentice program from August 20 2007, to August 25, 2008, with the Burlington Northern & Santa Fe Railway was received from the Veteran. In January 2009, the RO received the Veteran's REQUEST FOR CHANGE OF PROGRAM OR PLACE OF TRAINING, VA Form 22-1995. By award action in January 2009, Chapter 30 benefits were approved for this program from December 1, 2007, to February 18, 2008. As indicated, by action of the RO in July 2009, this award was extended to August 25, 2008, following confirmation of the Veteran's desire to be paid Chapter 30 benefits under his apprentice program with the Burlington Northern & Santa Fe Railway rather than the program of education with Penn Foster College. See April 13, 2009, Report of Contact. To determine the merits of the Veteran's appeal, it is necessary to review the law and regulations governing the assignment of commencing dates for Chapter 30 benefits. When an eligible Veteran or service member enters or reenters into training (including a reentrance following a change of program or educational institution), the commencing date of his or her award of educational assistance will be determined as follows: If the award is the first award of educational assistance for the program of education the Veteran or service member is pursuing, the commencing date of the award of educational assistance is the latest of: (A) The date the educational institution certifies under paragraph (b) or (c) of this section; (B) One year before the date of claim as determined by Sec. 21.1029(b); (C) The effective date of the approval of the course, or (D) One year before the date VA receives the approval notice for the course. If the award is the second or subsequent award of educational assistance for the program of education the Veteran or servicemember is pursuing, the effective date of the award is the later of (A) The date the educational institution certifies under paragraph (b) or (c) of this section; or (B) The effective date of the approval of the course, or one year before the VA receives the approval notice, whichever is later. See 38 C.F.R. § 21.7131(a). Under 38 C.F.R. § 21.1029(b), the "date of claim" is the date on which a valid claim or application for educational assistance is considered to have been filed with VA, for purposes of determining the commencing date of an award of that educational assistance. (1) If an informal claim is filed and VA receives a formal claim within one year of the date VA requested it, or within such other period of time as provided by Sec. 21.1032, the date of claim, subject to the provisions of paragraph (b)(3) of this section, is the date VA received the informal claim. (2) If a formal claim is filed other than as described in paragraph (b)(1) of this section, the date of claim, subject to the provisions of paragraph (b)(3) of this section, is the date VA received the formal claim. (3) If a formal claim itself is abandoned and a new formal or informal claim is filed, the date of claim is as provided in paragraph (b)(1) or (b)(2) of this section, as appropriate. From the above and given the circumstance of this case, the earliest date that the award of Chapter 30 benefits for the apprentice program with the Burlington Northern & Santa Fe Railway in this case could commence under 38 C.F.R. § 21.7131(a) is the date chosen by the RO, namely December 1, 2007, one year before the RO received the Veteran's application for Chapter 30 benefits for this program. The Veteran does not dispute that he did not file a claim for the benefits that were approved prior to this date, but asserts that he did not file his claim until this date due to the delay in VA's approval of this program "through no fault of my own" but instead, fault by a VA official who "mistakenly sent the paperwork through the Federal channels" instead of with state officials. While the Board appreciates these sincere assertions, there is no statutory or regulatory provision for any exceptions to the filing requirements that apply in this case. The Board is bound by the applicable law and regulations when determining claims for VA benefits. The regulatory criteria governing commencement dates of awards of Chapter 30 educational assistance benefits are clear and specific, and the Board is bound by them. Pursuant to these criteria, there is no basis upon which to grant the Veteran Chapter 30 benefits in question prior to December 1, 2007. As the law in this case is dispositive and the pertinent facts in this case are not in dispute, the Veteran's claim must be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to payment of educational assistance benefits under Chapter 30, Title 38, United States Code, for a signal apprentice program with the Burlington Northern & Santa Fe Railway prior to December 1, 2007, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs