Citation Nr: 1123372 Decision Date: 06/20/11 Archive Date: 06/28/11 DOCKET NO. 10-33 555 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to Montgomery GI Bill in excess of the half-time rate for the period from August 22, 2009, to December 12, 2009. ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from June 2000 to April 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 decision of the Department of Veterans Affairs (VA) Regional Office's (RO) Education Center in Muskogee, Oklahoma, which reduced the Veteran's Montgomery GI Bill benefits from full-time to half-time enrollment for the term from August 22, 2009, to December 12, 2009. FINDINGS OF FACT 1. From August 22, 2009, to December 12, 2009, the Veteran completed 15.25 credit hours at the College of the Canyons. 2. From August 22, 2009, to December 12, 2009, the Veteran was certified and only approved for 7.5 credit hours by a responsible official of the school towards his Emergency Medical Technician (EMT) Certificate Program at the College of the Canyons. CONCLUSION OF LAW The Veteran is not entitled to payment of educational assistance benefits at more than the half-time rate for the period extending from August 22, 2009, through December 12, 2009. 38 C.F.R. §§ 21.3130, 21.4270, 21.4272 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this case, the relevant facts are not in dispute; e.g., there is no dispute as to the fact the Veteran participated in an EMT program for a specified number of credit hours during the period from August 22, 2009, to December 12, 2009. However, as detailed below, relevant regulatory provisions mandate that determining the number of credit hours for his courses be certified by a responsible official of the school. Therefore, the benefit sought on appeal must be denied as a matter of law. In VAOPGCPREC 5-2004 (July 23, 2004) VA's Office of General Counsel held that the VCAA does not require either notice or assistance when the claim cannot be substantiated under the law or based on the application of the law to undisputed facts. Similarly, the United States Court of Appeals for Veterans Claims (Court) has held that the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). Analysis Chapter 30 of Title 38, U.S. Code sets forth provisions to allow for educational assistance for members of the Armed Forces after their separation from military service. 38 U.S.C.A. §§ 3001-3036 (West 2002). VA will pay Chapter 30 educational assistance to an eligible Veteran while he is pursuing approved courses in a program of education. 38 C.F.R. § 21.7130 (2010). The rate of payment for VA basic educational assistance is dependent, in part, upon the status of the veteran's educational training (e.g., full time, 3/4 time, 1/2 time, etc.). See 38 C.F.R. § 21.7136(b) (2010). In this case, the Veteran has been paid educational assistance benefits at a 1/2-time rate for the period extending from August 22, 2009, through December 12, 2009. The Veteran maintains that was he approved for all of his course work by the College of the Canyons for his educational plan for his EMT program. Therefore, he contends he should be reimbursed at a full-time rate. In September 2009, the College of the Canyons certified the Veteran in an EMT Certificate Program for 10.5 credit hours from August 22, 2009, to December 12, 2009, and for 4.5 hours from September 8, 2009, to November 19, 2009. Also in September 2009, the VA awarded the Veteran Montgomery GI benefits at the 3/4 rate beginning August 22, 2009, at the full-time rate from September 8, 2009, to November 20, 2009, and back to the 3/4 rate from November 20, 2009, to December 12, 2009. Then in March 2010, the College of the Canyons notified VA that it was amending the Veteran's enrollment to only 7.5 credit hours for the term from August 22, 2009, to December 12, 2009, for the EMT Certificate Program. The College of the Canyons also terminated the Veteran's enrollment from September 8, 2009, to November 19, 2009, indicating that it had reported the Veteran's certificate for the term in error. Accordingly, in April 2010, VA reduced the Veteran's Montgomery GI benefits from full-time to half-time for the term from August 22, 2009, to December 12, 2009. In April 2010, the Veteran submitted a copy of the Office of Admission and Records Certification of Enrollment from the College of the Canyons showing that the Veteran had enrolled in 15.25 units for the term from August 24, 2009, to December 12, 2009. He also submitted a counseling educational plan worksheet which shows that for the fall of 2009, 18.25 credits were contemplated as of July 2009. Subsequently, in July 2010, VA contacted the College of the Canyons via telephone and the certifying official verified that the Veteran completed 7.5 credit hours approved for his EMT Certificate Program for the term from August 22, 2009, to December 12, 2009. The official indicated that the Veteran was enrolled in other courses but they did not apply to his EMT Certificate Program and those courses could not be certified. The official further stated that the school had informed the Veteran that he was taking courses which could not be applied to his EMT program and that he would not be eligible for Montgomery GI benefits. Based on the evidence, the Board does not dispute the Veteran's contention that he completed 15.25 credit hours from August 24, 2009, to December 12, 2009. However, under 38 C.F.R. § 21.3130(c)(2), VA will not make payment for courses or training if the courses or training are not part of the eligible person's program of education. Additionally, 38 C.F.R. § 21.4270 sets forth that courses/semester hours must be "certified by a responsible official of the school." Here, the certifying official at the College of the Canyons has specifically indicated that only 7.5 credit hours were approved for the Veteran's EMT certificate program. The Board recognizes the Veteran's assertion that the courses beyond the 7.5 credit hours were part of his program. However, he has not submitted any documentation to support this assertion. The counseling worksheet signed by the Veteran and his counselor in July 2009 does not verify which, if any, of his prospective courses were to be counted towards his program. The Board, thus, finds that the statement from the school official is more probative than the Veteran's assertion as the pertinent regulation clearly provides that certification of come from a responsible official of the school, not from the Veteran. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (finding that VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). In short, the law mandates VA determine the amount of the Veteran's educational assistance benefits for the term from August 24, 2009, to December 12, 2009, on the basis of his having completed 7.5 semester hours since that is the total number of credit the responsible official at the school has certified. VA regulations provide for collegiate undergraduate course work, such as the Veteran's. The Veteran completed 7.5 credit hours, which falls in line with the 1/2 time session, which provides for 7 through 9 semester hours as certified by a responsible official of the school. See 38 C.F.R. § 21.4270(c). As the Veteran participated in 7.5 equivalent credit hours per week, he is entitled to educational assistance benefits at no more than the 1/2-time rate, for which he has already received; i.e., he is not entitled to educational assistance benefits at the full-time rate as a matter of law. Consequently, the benefit sought on appeal must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (noting that when the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). (CONTINUED ON NEXT PAGE) ORDER Entitlement to Montgomery GI Bill in excess of the half-time rate for the period from August 22, 2009, to December 12, 2009 is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs