Citation Nr: 1127265 Decision Date: 07/21/11 Archive Date: 07/29/11 DOCKET NO. 10-47 080A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to educational assistance benefits under Chapter 30, Title 38, United States Code, the Montgomery G.I. Bill (MGIB), beyond July 11, 2010. 2. Entitlement to reimbursement of educational assistance benefits under the MGIB for licensing and certification (LAC) fees associated with the Landscape Architecture Registration Examination (L.A.R.E.) administered by the state of Florida. 3. Entitlement to reimbursement of educational assistance benefits under the MGIB for LAC fees associated with the Real Estate Sales Associate license in the state of Florida. ATTORNEY FOR THE BOARD M. Purdum, Associate Counsel INTRODUCTION The Veteran had continuous honorable active duty dated from May 1993 to May 1998; with additional active service dated from May 1998 to July 2000 ending in a general discharge under honorable conditions. This matter is before the Board of Veterans' Appeals (Board) on appeal from determinations by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. By a March 2010 determination, the Veteran was granted education benefits under the MGIB and assigned a delimiting date of July 11, 2010. By an April 2010 determination, the Veteran's claim of entitlement to reimbursement of educational assistance benefits under the MGIB for LAC fees was denied. The issue of entitlement to reimbursement of educational assistance benefits under the MGIB, for LAC fees associated with the Real Estate Sales Associate license in the state of Florida, addressed in the REMAND portion of the decision below, is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A DD-215, dated on May 12, 2004, amended the Veteran's DD-214 to demonstrate that he had continuous honorable active service dated from May 19, 1993, to May 17, 1998. 2. Ten years from the date of the DD-215, and thus the Veteran's delimiting date for educational assistance benefits under the MGIB, is May 13, 2014. 3. In April 2010, the Veteran filed a claim for reimbursement under the MGIB for LAC fees associated with the L.A.R.E administered by the state of Florida. 4. The L.A.R.E. is not an examination approved by VA in the state of Florida. 5. In December 2006, May 2007, October 2007, and June 2009, the Veteran took separate sections of the L.A.R.E. administered by the state of Florida. CONCLUSIONS OF LAW 1. An extension of the July 11, 2010, delimiting date for educational assistance benefits under the MGIB to May 13, 2014, is warranted. 38 U.S.C.A. §§ 3011(a)(3), 3031(a)(b), 3013(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 20.7042(a)(4), 21.7050 (2010). 2. The criteria are not met for reimbursement of educational assistance benefits under the MGIB for LAC fees associated with the L.A.R.E. administered by the state of Florida. 38 U.S.C.A. §§ 3014, 3031, 3689 (West 2002 & Supp. 2010) 38 C.F.R. §§ 21.1029(b), 21.7131(a)(2) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist the Appellant The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2010), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In Dela Cruz v. Principi, 15 Vet. App. 143 (2001), the United States Court of Appeals for Veterans Claims (Court) held that the enactment of the VCAA does not affect matters on appeal when the question is one limited to statutory interpretation. See also Manning v. Principi, 16 Vet. App. 534, 542 (2002); Sabonis v. Brown, 6 Vet. App. 426, 429- 30 (1994) (where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought.). While the decision herein grants the benefit sought as to the extension of the Veteran's delimiting date for education assistance benefits under the MGIB and no prejudice can result to the Veteran; the decision also denies the benefit sought as to reimbursement of educational assistance benefits under the MGIB for LAC fees associated with the L.A.R.E. administered by the state of Florida. However, further inquiry as to the VCAA requirements and the denied claim is not required as the law and not the evidence are dispositive in the instant case, and additional factual development would have no bearing in the ultimate outcome. Accordingly, VCAA can have no effect on this appeal. See Dela Cruz, supra; see also Manson v. Principi, 16 Vet. App. 129, 132 (2002) (VCAA not applicable "because the law as mandated by statute and not the evidence is dispositive of the claim.") Extension of Delimiting Date The MGIB provides for VA educational assistance for members of the Armed Forces after separation from military service under certain circumstances. See 38 U.S.C.A. §§ 3001-3012 (West 2002). To be eligible for such benefits based solely on active duty, the individual must first become a member of the Armed Forces or first enter active duty as a member of the Armed Forces after June 30, 1985. Additionally, one of the following threshold periods of service must generally be met: (1) where the obligated period of active duty is three years or more, the individual must serve at least three years of continuous active duty; or (2) where the obligated period of active duty less than three years, the individual must serve at least two years of continuous active duty. 38 U.S.C.A. § 3011(a)(1)(A)(i); 38 C.F.R. § 21.7042(a). After completing the threshold service requirements, the individual must either: (a) continue on active duty; (b) be discharged from service with an honorable discharge; (c) be released after service on active duty characterized by the Secretary of the military department concerned as honorable service and be placed on the retired list or the temporary disability retired relist, or transferred to the Fleet Reserve or Fleet Marine Corps Reserve; or (d) be released from active duty for further service in a reserve component of the Armed Forces after service on active duty characterized by the Secretary of the military department concerned as honorable service. 38 U.S.C.A. § 3011(a)(3); 38 C.F.R. § 21.7042(a)(4). At the time the Veteran first applied for educational assistance benefits under the MGIB in May 2001, his service separation form, his DD-214, indicated that he had active service dated from May 19, 1993, to July 10, 2000, and that his character of discharge was general under honorable conditions. As entitlement to the benefit sought required honorable service, and the Veteran, as of May 2001, had only evidence of a general discharge under honorable conditions, his claim was denied. 38 U.S.C.A. § 3011(a)(3); 38 C.F.R. § 21.7042(a)(4). The Veteran filed again for educational assistance benefits under the MGIB in February 2010. At that time he submitted a DD-215, dated on May 12, 2004, amending his original DD-214. The DD-215 demonstrated that the Veteran had continuous honorable service from May 19, 1993, to May 17, 1998. Further, the Veteran submitted an Honorable Discharge Certificate, indicating that he was honorably discharged from the United States Navy on May 17, 1998. As entitlement to the benefit sought required honorable service, and the Veteran provided evidence of a period of sufficient length of continuous honorable service, his claim was granted. 38 U.S.C.A. § 3011(a)(3); 38 C.F.R. § 21.7042(a)(4). The RO assigned the Veteran a delimiting date of July 11, 2010. It appears that the RO arrived at such delimiting date by using his service separation date of July 10, 2000, and adding ten years. Such is the case in most claims, however, as discussed above, the Veteran's service that ended in July 2000 also ended in a general discharge under honorable conditions and his service separation date does not represent the date upon which he separated from a period of service, honorable service, eligible for educational assistance benefits under the MGIB. Thus, the proper delimiting date, prior to consideration of any available exceptions, is May 18, 2008, ten years after the Veteran's separation from his period of honorable service. The paramount inquiry in the present case, however, is whether any exceptions contemplated by the relevant regulations provide the Veteran with a delimiting date beyond that of the one currently assigned, July 11, 2010. The general rule with regard to educational assistance benefits under the MGIB, generally 36 months of benefits, is that the period within which an individual may use such educational assistance benefits "expires at the end of the 10-year period beginning on the date of such individual's last discharge or release from active duty . . . ." See 38 U.S.C.A. § 3031(a); 38 C.F.R. § 21.7050(a). Exceptions to this rule provide that the 10-year period can be extended if: (1) the individual was initially prevented from establishing eligibility for educational assistance due to the character of his discharge, but was later able to establish eligibility as a result of a change, correction, modification, or other corrective action by competent military authority; (2) the individual was captured and held as a prisoner of war by a foreign government or power after his last discharge or release from active duty; (3) the individual was prevented from pursuing his chosen program of education before the expiration of the 10-year period because of a physical or mental disability not the result of his own willful misconduct; (4) the individual was enrolled in an educational institution regularly operated on the quarter or semester system and the period of entitlement under 38 U.S.C.A. § 3013 expired during a quarter or semester; or (5) the individual was enrolled in an educational institution not regularly operated on the quarter or semester system and the period of entitlement under 38 U.S.C.A. § 3013 expired after a major portion of a course was completed. See 38 U.S.C.A. § 3031(b)(c)(d)(f); 38 C.F.R. §§ 21.7050(f)(g), 21.7051(a), 21.7135(s) (2010). VA must receive a claim for an extended period of eligibility, by the later of the following dates: (1) one year from the date on which a veteran's original period of eligibility ended; or (2) one year from the date on which a veteran's physical or mental disability no longer prevented him or her from beginning or resuming a chosen program of education. 38 C.F.R. § 21.1033(c). The Board notes that in the present case, the Veteran filed his claim for an extended period of eligibility in February 2010, prior to the date on which his original period of eligibility was set to expire, July 11, 2010. The claim for an extension was thus timely received. Exceptions (2), (3), (4), and (5) are not at issue in this case. There is no evidence, and the Veteran does not contend, that he was captured and held as a prisoner of war; had a physical or mental disability not the result of his own willful misconduct; or was enrolled in an educational institution regularly operated on the quarter or semester system and the period of entitlement under 38 U.S.C.A. § 3013 expired during a quarter or semester or enrolled in an educational institution not regularly operated on the quarter or semester system and the period of entitlement under 38 U.S.C.A. § 3013 expired after a major portion of a course was completed. The only exception for consideration is whether the Veteran was initially prevented from establishing eligibility for educational assistance due to the character of his discharge, but was later able to establish eligibility as a result of a change, correction, modification, or other corrective action by competent military authority. As discussed above, the Veteran was able, at the time of his February 2010 claim of entitlement to educational assistance benefits under the MGIB, to establish eligibility as a result of a change, correction, modification, or other corrective action by competent military authority. Specifically, his DD-215, dated on May 12, 2004, demonstrated that while his period of active service that ended in July 2000 is characterized by a general discharge under honorable conditions, his period of active service dated from May 19, 1993, to May 17, 1998, was deemed continuous honorable service. Further, his Honorable Discharge Certificate indicated that he was honorably discharged from the United States Navy on May 17, 1998. As the Veteran established eligibility for educational assistance benefits under the MGIB as a result of a change, correction, modification, or other corrective action by competent military authority, he is entitled to an extension of his assigned delimiting date. The Board notes that where a veteran becomes eligible as the result of a correction of military records by corrective action by competent military authority, the VA will not provide educational assistance later than 10 years from the date his or her dismissal or discharge was changed, corrected, or modified, except as provided in 38 C.F.R. § 21.7051 related to physical and mental disabilities. 38 U.S.C.A. § 3013(b); 38 C.F.R. §§ 21.7050(f), 21.7051 (2010). Based on the foregoing, 10 years from the date the Veteran's dismissal or discharge was changed, warranting eligibility for educational assistance benefits under the MGIB, is May 13, 2014. As discussed above, the Veteran's DD-215 is dated on May 12, 2004, and 10 years from such date is May 13, 2014. Thus, his assigned delimiting date of July 11, 2010 is extended to May 13, 2014. Reimbursement of LAC Fees As discussed above, the Veteran's claim for educational benefits under the MGIB was received in February 2010 and subsequently such benefits were awarded. In April 2010, the Veteran filed an application for reimbursement for LAC fees associated with examinations and licensing administered by the state of Florida. Specifically, reimbursement was requested for the costs required to complete the Landscape Architecture Registration Examination (L.A.R.E.). The Veteran asserted that five separate testing sections were required for the license, as well as an additional testing section related to separate state laws and rules. The file contains internet printouts of the Florida website indicating that the Veteran indeed took the five separate testing sections, as well as the state-specific section. The printouts indicate that he took Planing and Site Design in December 2006; Laws and Rules in May 2007; Structural Considerations, Legal and Administrative Aspects, and Analytical Aspects in October 2007; and Grading and Drainage in June 2009. In an April 2010 determination, the RO informed the Veteran that the expenses submitted for reimbursement were related to credentials not approved by VA. The RO further noted that the Veteran's claim could not be granted and costs could not be reimbursed for any LAC fees he paid for more than one year before the claim for such payment was received by VA. 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. VA will pay educational assistance to an eligible veteran or service member while he or she is pursuing approved courses in a program of education. 38 C.F.R. § 21.7130 (2010). VA will award educational assistance for the cost of a licensing or certification test only when the claimant takes such test: (i) while the test is approved under 38 U.S.C. chapter 36; (ii) while the veteran is eligible for educational assistance under this subpart; and; (iii) no more than one year before the date VA receives a claim for reimbursement of the test. 38 C.F.R. § 21.7131(a)(2). 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. 21.1033, 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. 38 C.F.R. § 21.1029(b). The Veteran's application for reimbursement was received by VA in April 2010, more than one year after the test dates for which reimbursement is sought, except for the one section of the L.A.R.E., Grading and Drainage, that he took in June 2009. There is no indication on file of any claim for reimbursement for LAC fees filed prior to that time. As such, the Veteran is not entitled to reimbursement for LAC fees associated with the L.A.R.E. for sections completed more than one year prior to the date of his application. See 38 C.F.R. § 21.7131(a). While the Veteran took Grading and Drainage in June 2009, part of the L.A.R.E. for which he seeks reimbursement, the L.A.R.E., in the state of Florida, is not a credential approved by VA. As discussed above, the Veteran was informed of such by the RO's April 2010 determination. At the time of the Veteran's May 2010 Notice of Disagreement, he acknowledged that the L.A.R.E. was not approved by VA in the state of Florida. However, he asserted that the L.A.R.E. was approved by VA in the state of Texas. He asserted that if such examination were approved by VA in the state of Texas, such examination would be approved by VA in the state of Florida, if someone had applied for such approval. At the time of the October 2010 Statement of the Case, the Veteran was provided with the regulations regarding the approval process of examinations. While his argument that the L.A.R.E. would be approved by VA in the state of Florida if someone had applied for such approval may be valid, the fact remains that to date; there is no evidence that such examination is approved by VA in the state of Florida. The regulatory criteria of Chapter 30 educational assistance benefits governing commencement dates of awards and pursuing approved courses in a program of education 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 the reimbursement he seeks for LAC fees associated with testing administered by the state of Florida prior to April 2009, one year prior to the time his claim for reimbursement was received by VA. Further, pursuant to these criteria, there is no basis upon which to grant the Veteran the reimbursement he seeks for LAC fees associated with testing administrated by the state of Florida for credentials not approved by VA. The law in this case is dispositive; the Veteran's claim of entitlement to reimbursement of educational assistance benefits under the MGIB, for LAC fees associated with the L.A.R.E. administered by the state of Florida must therefore be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Educational assistance benefits under the MGIB beyond July 11, 2010, are granted to May 13, 2014. Reimbursement of educational assistance benefits under the MGIB for LAC fees associated with the L.A.R.E. administered by the state of Florida is denied. REMAND Additional development is needed prior to further disposition of the claim. At the time of the Veteran's April 2010 claim, he asserted entitlement to reimbursement of educational assistance benefits under the MGIB, for LAC fees associated with the Real Estate Sales Associate license in the state of Florida. The Veteran provided an internet printout from a VA webpage that indicated that Real Estate Salesperson was a license approved by VA in the state of Florida. The Veteran further provided an internet printout from a Florida website that indicated that he held a Real Estate Sales Associate license. The printout included the Veteran's license number and rank, and indicated that the Veteran's license was current, inactive, and expired on March 31, 2011. The RO, in April 2010, denied the Veteran's claim on the basis that the expenses submitted for reimbursement were related to credentials not approved by VA. The RO further noted that the Veteran's claim could not be granted and costs could not be reimbursed for any LAC fees he paid for more than one year before the claim for such payment was received by VA. It appears that the RO did not recognize the Veteran's evidence, in the form of a printout from a VA webpage, indicating that Real Estate Salesperson was indeed a license approved by VA in the state of Florida. Further, the RO did not inquire as to the date the Veteran obtained his Real Estate Salesperson license in the state of Florida in order to determine if the costs were incurred more than one year prior to his April 2010 claim. On remand, the AMC/RO must confirm whether Real Estate Salesperson is indeed a license approved by VA in the state of Florida and confirm the date upon which the Veteran incurred the expense for such license. Accordingly, the case is REMANDED for the following action: 1. Supplement the record with confirmation as to whether Real Estate Salesperson is a license approved by VA in the state of Florida. If the AMC/RO determines that such license is not approved by VA in the state of Florida, the AMC/RO must address the Veteran's submitted printout from the VA webpage. 2. Contact the Veteran and request documentation as to the date upon which he incurred the expense for which he seeks reimbursement related to his Real Estate Salesperson license in the state of Florida. Any and all efforts to secure such information from the Veteran must be documented in the claims file. 3. Then, after ensuring any other necessary development has been completed; readjudicate the Veteran's claim of entitlement to reimbursement of educational assistance benefits under the MGIB, for LAC fees associated with the Real Estate Sales Associate license in the state of Florida, considering any additional evidence added to the record. If the action remains adverse to the Veteran, provide the Veteran with a Supplemental Statement of the Case and allow the Veteran an appropriate opportunity to respond thereto. Thereafter, return the case to the Board. The Board intimates no opinion as to the outcome of this case. The appellant need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs