Citation Nr: 1123371 Decision Date: 06/20/11 Archive Date: 06/28/11 DOCKET NO. 10-13 704A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to educational assistance benefits under Chapter 33 (Post-9/11 GI Bill) for a non-college degree program. ATTORNEY FOR THE BOARD S. Heneks, Associate Counsel INTRODUCTION The Veteran served on active duty from February 2003 to January 2008. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In his March 2010 notice of disagreement (NOD), the Veteran stated that he felt his program of study was covered under 38 C.F.R. § 21.120, which is under Vocational Rehabilitation and Employment Under 38 U.S.C.A. Chapter 31. The evidence of record does not indicate that the Veteran's claim has been considered under these provisions. The issue of entitlement to benefits under Chapter 31 has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran enrolled in a non-college degree program which began August 27, 2009. 2. The Veteran was notified in February 2010 that he had been erroneously awarded Chapter 33 benefits which resulted in an over payment in the amount of $7,163.91. CONCLUSION OF LAW The Veteran has no legal entitlement to educational benefits under Chapter 33 (Post-9/11 GI Bill) for a non-college degree program. 38 U.S.C.A. §§ 3301-3324 (West 2002 & Supp. 2010); 38 C.F.R. §§ 21.9505, 21.9590, 21.9635(r) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). In the present case, the Board acknowledges no VCAA letter was sent to the Veteran. However, the United States Court of Appeals for Veterans Claims (Court) has held that VCAA notification procedures do not apply in cases where the applicable chapter of Title 38, United States Code contains its own notice provisions. See Barger v. Principi, 16 Vet. App. 132, 138 (2002) (VCAA notice was not required in case involving a waiver request). In the present case, specific VCAA notice was not required because the applicable regulatory notification procedure was contained in 38 C.F.R. § 21.1031 for education claims, not the VCAA. VA's duty to notify is outlined under 38 C.F.R. § 21.1031(b) and the duty to assist is outlined under 38 C.F.R. § 21.1032. The Veteran was sufficiently advised in the July 2009 letter awarding him benefits under Post-9/11 GI Bill, February 2010 decision, and subsequent March 2010 Statement of the Case (SOC). The Board adds that the Veteran has been accorded appropriate due process. The Veteran has presented argument in his March 2010 notice of disagreement (NOD) and April 2010 Form 9 and has also demonstrated sufficient knowledge as to the legal reasons his claim was denied. Also, in the present case, the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). See also 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); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOGCPREC 5-2004 (June 23, 2004). In fact, the applicable notification and assistance procedures for educational assistance claims under 38 C.F.R. § 21.1031(b) and § 21.1032(d) emphasize that VA has no further duty to notify or assist the claimant when the undisputed facts render the claimant ineligible for the claimed benefit under the law, as is the case here. Therefore, the Board finds that no further action is necessary under the statutory and regulatory duties to notify and assist. LAW AND ANALYSIS The Post-9/11 GI Bill is established for individuals who served on active duty after September 10, 2001. It became effective August 1, 2009. 38 C.F.R. § 21.9500. Basic eligibility is established under 38 U.S.C.A. Chapter 33 under 38 C.F.R. § 21.9520. Payments of educational assistance are based on pursuit of a program of education. 38 C.F.R. § 21.9590(a). Subject to paragraph (a), VA will approve a program of education under 38 U.S.C. chapter 33 selected by the individual if the program meets the definition of a program of education in 38 C.F.R. § 21.9505. See 38 C.F.R. § 21.9590(b)(1). Program of education means a curriculum or combination of courses pursued at an institution of higher learning that are accepted as necessary to meet the requirements for a predetermined and identified educational, professional, or vocational objective. The curriculum or combination of courses pursued must be listed in the institution of higher learning's catalog and included in the approval notice provided by the State approving agency to VA in accordance with 38 C.F.R. § 21.4258(b)(iv). Institution of higher learning (IHL) means a college, university, or similar institution, including a technical or business school, offering postsecondary level academic instruction that leads to an associate or higher degree if the school is empowered by the appropriate State education authority under State law to grant an associate or higher degree. See 38 C.F.R. § 21.9505. In 2009, the Veteran filed a claim for education benefits under Chapter 33. A July 2009 decision informed the Veteran that he was entitled to benefits for an approved program of education or training under the Post-9/11 GI Bill. The letter stated that he was entitled to receive 100 percent of the benefits payable under the Post-9/11 GI Bill program for training offered by an institution of higher education. The letter noted that all training programs must be offered by a degree granting institution and approved for GI Bill benefits. The Veteran was told that once he chose his program and school, he should submit a VA Form 22-1995. In October 2009, VA received a VA Form 22-1999, Enrollment Certification for Training Other Than Apprenticeship or Other On-the-Job, Flight, or Correspondence Training. The Veteran indicated that he was enrolling in a non-college degree paramedic program. In December 2009, the Veteran was awarded benefits for the program he identified. Thereafter, in February 2010, the Veteran was informed that Post-9/11 Chapter 33 benefits were paid erroneously to a non college degree institution which resulted in an overpayment in the amount of $7,163.91. No overpayment was created for the Veteran as the award was the result of VA error. In his April 2010 Form 9, the Veteran requested that VA reimburse him for the cost of his second semester tuition because by the time he received notice that his course was not covered by the Post-9/11 GI Bill, it was too late for him to arrange another form of payment. As outlined in the March 2010 SOC, the Veteran was not eligible for payment for the term because the institution he attended does not quality as an IHL. The institution the Veteran attended is listed in the WEAMS database as a non-college degree school. Non-college degree schools are not qualified for Chapter 33 benefits. As the Veteran attended a program at an institution determined by VA's WEAMS database as a non-college degree school, the Board concludes that the RO was correct in determining that the Veteran is not entitled to benefits under Chapter 33. See 38 C.F.R. §§ 21.9590(a); 21.9505. With regard to the Veteran's contention that he should be reimbursed for his second semester tuition due to "late" notice, the Board can find no authority which would entitle him to reimbursement. The Veteran stated that his second semester began on January 12, 2010. He reported that he paid the total cost of the second semester, $2,631. A December 2009 bill from the institution showed a total of $2,631 for the second semester (tuition $2,500 and books $131). An audit worksheet in the Veteran's claims file reflects that benefits had been paid from August 27, 2009 to February 1, 2010 in the amount of $7,163.91. A November 2009 email from the Veteran's institution showed that his fees were as follows: August 27, 2009 to December 29, 2009 tuition $2,500 and fees $391; January 5, 2010 to May 11, 2010 tuition $2,400 and fees $131; and May 18, 2010 to August 31, 2010 tuition $2,250 and fees $52. Regulation 38 C.F.R. § 21.9635(r) notes that when an administrative error or error in judgment by VA is the sole cause of an erroneous award, the award will be reduced or terminated effective the date of last payment. This was done in the Veteran's case. As previously stated, the audit worksheet and February 2010 administrative decision notifying the Veteran that benefits were paid erroneously reflected that $7,163.91 had already been paid through February 1, 2010. In other words, it appears that VA paid part of the Veteran's second semester fees. Because VA properly terminated the Veteran's benefits effective the date of last payment, there is no authority for granting reimbursement of any of the remaining second semester fees. The Board is sympathetic to the Veteran's claim and his particular circumstances. Nonetheless, VA is bound by the applicable law and regulations as written. 38 U.S.C.A. § 7104(c). Neither the RO nor the Board is free to disregard laws and regulations enacted for the administration of VA educational programs. The eligibility requirements for educational assistance are prescribed by Congress and regulations enacted by the Armed Forces and VA. The law in this case, therefore, and not the evidence, is dispositive of the appeal. Sabonis v. Brown, 6 Vet. App. 426 (1994). As such, entitlement to educational assistance benefits under Chapter 33 for a non-college degree program, is not established. ORDER Entitlement to educational assistance benefits under Chapter 33 (Post-9/11 GI Bill) for a non-college degree program is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs