Citation Nr: 1202792 Decision Date: 01/25/12 Archive Date: 02/07/12 DOCKET NO. 07-03 039 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to full reimbursement in the amount of $345.00 for the National Strength and Conditioning Association (NSCA) Certified Personal Trainer Examination. ATTORNEY FOR THE BOARD Shabnam Keyvan INTRODUCTION The Veteran served in the U.S. Navy from July 2000 to March 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In November 2010, the Board remanded the Veteran's claim for further procedural and evidentiary development. Specifically, the Board instructed the Agency of Original Jurisdiction (AOJ) to obtain the Veteran's DD 214 as well as a detailed account of all additional educational benefits the Veteran has been awarded beyond his reimbursement for licensing and certification testing. In addition, the Board also instructed the AOJ to provide the Veteran with an explanation as to why the Licensing and Certification Automated Approval System (LACAS) only approved him for partial reimbursement of his NCSA certified personal trainer examination. The AOJ obtained the Veteran's DD 214s as well as a number of Chapter 30 (Montgomery GI Bill) Status and Award History Forms and Transaction and Payment History Forms, which list the supplementary Chapter 30 educational benefits awarded to the Veteran since he applied for education benefits in 2003. All of these documents were associated with the Veteran's claims file. In August 2011, the Board once again remanded the Veteran's claim to secure a copy of the State Approving Agency (SAA) electronic approval record discussed and relied upon in the April 2011 Supplemental Statement of the Case (SSOC), and to provide the Veteran with an explanation as to how the laws, regulations, and/or guidelines relied upon resulted in the finding that the SAA, and not VA, determines the maximum amount payable for each licensing and certification examination. To the extent available, the necessary information was provided to the Veteran, and records have been associated with his claims file. As such, the Board finds that the AOJ completed the development specifically requested in the August 2011 Board remand and complied with the remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). FINDINGS OF FACT 1. The Veteran is entitled to education benefits under Chapter 30, Title 38, United States Code (Montgomery GI Bill). 2. In July 2006, the Veteran paid $345.00 to take an NSCA personal trainer certification test and was reimbursed only $220.00 by VA. 3. The LACAS used in the adjudication of this claim is no longer available and the only records available are insufficient in determining the maximum amount the SAA approved as payable for the NSCA Certified Personal Trainer test at the time the Veteran completed this examination in July 2006. 4. Given that the necessary information is no longer available, the Veteran will be found to be entitled to full reimbursement for the NSCA Certified Personal Trainer Examination he took in July 2006, and should specifically be provided $125.00, the remaining difference between the amount he paid to take the test ($345.00), and the amount in which he has previously been reimbursed ($220.00). CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to full reimbursement for the NSCA Certified Personal Trainer Examination have been met. 38 U.S.C.A. §§ 3002 (3); 3452(b) (West 2002); 38 C.F.R. §§ 21.4268, 21.7142 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION The notice and duty to assist provisions of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) are relevant to Chapter 51 of Title 38 of the United States Code but do not appear to apply in cases regarding educational benefits governed by Chapter 34. See Barger v. Principi, 16 Vet. App. 132, 138 (2002). In any event, the Board has considered the legislation regarding VA's duty to notify and to assist claimants but finds that, given the favorable action taken herein with regard to whether the Veteran is entitled to a full reimbursement in the amount of $345.00 for the NSCA Certified Personal Trainer Examination, no further discussion of the VCAA is required with respect to this issue. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). A "program of education" includes licensing or certification tests, the successful completion of which demonstrates an individual's possession of the knowledge or skill required to enter into, maintain, or advance in employment in a predetermined and identified vocation or profession, provided such tests and the licensing or credentialing organizations or entities that offer such tests are approved by the Secretary in accordance with section 3689 of this title. 38 U.S.C.A. § 3452(b). The amount VA may pay for a licensing or certification test is limited to the lowest of the following: (1) the fee charged for taking the test, (2) $2,000, or (3) the remaining amount of educational assistance to which the claimant is entitled. 38 U.S.C.A. § 3032(f); 38 C.F.R. § 21.7142(c) (2011). In this claim, the Veteran contends that he should have received a full reimbursement for his NSCA Certified Personal Trainer Examination. The record reflects that the Veteran submitted two Applications for Licensing and Certification Testing Fee Reimbursement to VA for American College of Sports Medicine certified personal trainer tests taken in August 2006 and September 2006. The Veteran was subsequently reimbursed the full amount he paid for each test-$259.00 and $135.00 respectively. However, in July 2006, the Veteran took another personal trainer certification test through the NSCA certification commission which cost him $345.00, but he was only reimbursed $220.00 by VA. See October 2006 RO decision, which also noted that, as of the 2006 RO decision, the Veteran had 25 months, and 15 days of benefits remaining under the Montgomery GI Bill (MGIB). In his December 2006 VA Form 9, the Veteran stated that VA did not inform him why the July 2006 NSCA Personal Trainer Certification Examination was only reimbursed for $220.00 instead of the full amount he paid to take the examination. In a November 2006 Statement of the Case (SOC), the RO explained that the amount of reimbursement of a license or certification test must be approved by the LACAS and that reimbursement of the Veteran's NSCA Certified Personal Trainer Examination was only approved for $220.00. No further explanation was provided. In the November 2010 Remand, the Board instructed the RO to provide an explanation as to how the laws and regulations impacted the determination that a full reimbursement for the Veteran's July 2006 certification examination was not warranted. The Board specifically asked the RO to provide an explanation as to why the LACAS only approved the Veteran for reimbursement of $220.00 when the actual certification examination cost him $345.00. Pursuant to these instructions, in the April 2011 Supplemental Statement of the Case (SSOC), the RO explained that, under the Licensing and Certification Program, the SAA, and not VA, determines the maximum amount payable for each examination or test taken. See April 2011 SSOC. Based on guidelines provided by the SAA, the $220.00 reimbursed to the Veteran is the maximum amount payable to the Veteran. In rendering its determination, the RO referred to the SAA electronic approval record that had not been associated with the Veteran's claims file at that time. As such, the Board remanded the Veteran's claim again in August 2011 and instructed the RO to obtain the SAA electronic approval record referenced in the April 2011 SSOC and to further provide the Veteran with a more detailed explanation as to how the laws, regulations and guidelines relied upon resulted in the finding that the SAA, and not VA, determines the maximum amount payable for each licensing and certification examination. Pursuant to these instructions, the RO obtained the transaction history forms for the American College of Sports Medicine and associated these records with the claims file. In the September 2011 SSOC, the RO explained that the LACAS used in the adjudication of this claim has been replaced by a different program, and only archived records are available, since the LACAS website is no longer available. The transaction history forms provided reflect that the maximum amount payable for the NSCA Certified Personal Trainer test had been approved for $235.00 as of April 14, 2008, and increased to $405.00 on January 6, 2009. However, upon reviewing these records, the Board finds that the transaction history forms are insufficient and incomplete in that information pertaining to the approved maximum amount payable for completion of the NSCA Certified Personal Trainer Examination in July 2006, the time the Veteran took this test, is unavailable. Indeed, the records are devoid of any information as to approved maximum amount payable prior to April 14, 2008. In light of the fact that the Board has previously remanded the Veteran's claim twice in an effort to retrieve this information and resolve this issue, and given that the records provided by the RO reflect that the LACAS used in adjudicating this claim has since been replaced by a different program, only certain records are currently available, and information regarding the approved maximum amount payable for the NSCA Certified Personal Trainer test as of July 2006 is not available, the Board resolves reasonable doubt in favor of the Veteran, and finds that he is entitled to a full reimbursement for the NSCA Certified Personal Trainer Examination. In particular, the Veteran should be reimbursed for $125.00, the difference between the $345.00 he paid to take the test, and the $220.00 he was previously reimbursed by VA. As such, the Veteran is entitled to the remaining $125.00. 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. ORDER Entitlement to reimbursement in the remaining amount of $125.00, for the NSCA Certified Personal Trainer Examination is granted. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs