Citation Nr: 1300082 Decision Date: 01/02/13 Archive Date: 01/11/13 DOCKET NO. 08-15 092 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to educational assistance benefits under Chapter 30, Title 38, United States Code, for flight training courses taken in July 2007. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD H. Seesel, Counsel INTRODUCTION The Veteran had active service from November 1999 until August 2008. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a December 2007 administrative decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Board previously considered the appeal in February 2010 and January 2011 and remanded the claim for further development. The RO/Appeals Management Center (AMC) completed all requested development, but continued the denial of benefits sought. As such, this matter is properly returned to the Board for appellate consideration. FINDINGS OF FACT 1. The Veteran is eligible for Chapter 30 benefits. 2. The Veteran took the Concentration 121 course through CAE SimuFlite in July 2007. 3. The Veteran did not complete a Lear Jet 35 type rating flight training program. 4. The Concentration 121 course is not approved as a licensing and certification course or as a flight training course. CONCLUSION OF LAW The criteria for an award of educational benefits under Chapter 30, Title 38, United States Code, for enrollment in a flight training course beginning in July 2007, have not been met. 38 U.S.C.A. §§ 3011, 3014, 3034, 3672, 3680A, 3689, (West 2002); 38 C.F.R. §§ 21.4263, 21.4265, 21.4268, 21.7220, 21.7140 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) has held that the duties to notify and assist under the VCAA are relevant to Chapter 51 of Title 38 of the United States Code, but do not apply in situations that are governed by other chapters. See Barger v. Principi, 16 Vet. App. 132, 138 (2002). This case relates to educational benefits that are governed by Chapter 30 of Title 38; per Barger, the VCAA does not apply to Chapter 30 benefits. Further, this case turns on the interpretation of the regulations governing payment of VA educational benefits. In cases where the law, and not the evidence, is dispositive, the VCAA is not for application. Mason v. Principi, 16 Vet. App. 129 (2002); VAOPGCPREC 2-2004 (March 9, 2004). Nonetheless, the Board points out that the RO sent the Veteran letters dated in August 2007 and April 2011 that explained what evidence the Veteran should submit to substantiate his claim. Additionally, as noted in the Introduction, the claim was previously remanded by the Board in February 2010 and January 2011. In February 2010, the Board remanded the claim for the RO to verify the Veteran's service and to provide the relevant regulations in a statement of the case. The Board remanded the claim again in January 2011 to obtain clarification from the Veteran, Air Force and/or CAE SimuFlite as to evidence that the course that was completed, including information concerning who paid for the course, and for the RO to provide the relevant regulations in a statement of the case. After the most recent remand, the RO sent the Veteran a letter in April 2011 requesting documentation of the course he completed, including information concerning payment. The Veteran did not respond. A response from the Air Force indicated that they had no information in their system and that the Veteran should provide a source document of him having attended the program. A response from CAE SimuFlite provided the information requested. In other words, although the Air Force and Veteran were unable to provide the details, the RO contacted all three entities and obtained the information sought. As such, there has been substantial compliance with this remand directive, and the Board is able to proceed with a decision on the appeal. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board finds that under the circumstances outlined above the RO has satisfied its duties to notify and assist the Veteran and that adjudication of the appeal at this point presents no risk of prejudice to the Veteran. See e.g. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Therefore, as all relevant evidence has been received, the Board may proceed with adjudication of the claim. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Factual Background The Veteran has requested reimbursement for two separate courses he took while he was on active duty. The Veteran asserted that he completed a Federal Aviation Administration (FAA) Part 121 knowledge test for airline transport pilot (ATP), which was completed in March 2007, and a Lear Jet 35 type rating flight training course in July 2007. In a March 2008 rating decision, the RO granted reimbursement in the amount of $500 for the ATP O/P test in July 2007. A subsequent December 2007 rating decision granted payment of $100 for the FAA ATP Airplane Part 121 test. The Veteran's claim for the FAA Part 121 knowledge and practical tests indicated that he sought reimbursement for $100 for the knowledge test and $500 for the practical test. Accordingly, as the Veteran has been granted the benefit sought, that issue is no longer on appeal. The remaining issue on appeal is whether the Veteran is entitled to reimbursement for the cost of the course he took through CAE SimuFlite, Inc. in July 2007. A March 2007 certificate of eligibility advised the Veteran that he was eligible for an approved program of education or training under the Montgomery GI Bill and had 36 months and 0 days of full-time benefits. He was informed that he should take the letter to his school, and the school must certify enrollment before he could be paid. This letter cautioned that not all training facilities and programs were approved for VA benefits and advised the Veteran to contact VA to confirm whether the program was approved prior to enrolling. An Invoice from CAE SimuFlite reflects that the Veteran took a C-21A type/ATP course in July 2007. The course cost $2000. The invoice indicated the company paying was the United States Air Force. A printout from VA's Web Enhanced Approval Management System (WEAMS) reflected that, while CAE SimuFlite had several approved courses, the C-21A course was not an approved course. An undated response to a VA inquiry concerning the program explained that CAE SimuFlite is approved for Lear Jet Type RTG and/or ATP program and it may be a testing site for the FAA regarding the exam. The response noted that WEAMS indicated there were several ATP exams approved in Washington, DC, with costs ranging from $100 to $500. Other documents from WEAMS in the claims file confirm that CAE SimuFlite has several Lear Jet 35 Type training courses that are approved. In the substantive appeal, the Veteran explained that, prior to taking the course, he had coordinated with SimuFlite employees about obtaining reimbursement. He explained that he was later informed by a SimuFlite employee that the company was not going to pursue approval of the Air Force program because of a lack of interest in the program on the part of Air Force pilots and the cost associated in implementing the program. The Veteran indicated that SimuFlite denied reimbursement through VA because he did not participate in the longer, more expensive civilian program. He questioned how the company could have an approved civilian program, but an unapproved program for the military. A July 2010 email from an RO employee indicated that the certifying official from CAE SimuFlite reported that the Veteran did not take the actual Lear Jet program. The CAE SimuFlite employee explained the Veteran took the ATP check ride portion along with the C-21 training. The certifying official indicated that the military paid for everything. An April 2011 email from an RO employee indicated that CAE SimuFlite was contacted to obtain information as to the course the Veteran took. CAE SimuFlite reported that the Veteran completed Concentration 121, a recurrent class that is the Air Force version of the Lear Jet 25/35 training program. The Veteran completed this program from July 15, 2007, until July 21, 2007. The program was not a non-college degree (NCD) program and was not approved for VA benefits. The training was described as a flight training program; however, it was not approved for VA benefits, as the version was designed for the Air Force only. This email also indicated that CAE SimuFlite was not approved for license and certification exams in their own right, but could administer FAA examinations. The email noted that the ATP airplane 121 knowledge test had been approved through Washington, DC, effective March 2001. The response indicated that the Air Force was billed $3,880.00 for the recurrent training and that the Veteran paid $2,000.00 to get the upgrade type rating for that program. Although the CAE SimuFlite records and receipts were archived and were no longer available, the certifying official assured the RO employee that money was received as there was no outstanding balance. Applicable Laws 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 serves at least three years of continuous active duty. 38 U.S.C.A. § 3011 (West 2002); 38 C.F.R. § 21.7042 (2012). The Secretary shall pay to each individual entitled to basic educational assistance who is pursuing an approved program of education a basic educational assistance allowance to help meet, in part, the expenses of such individual's subsistence, tuition, fees, supplies, books, equipment and other educational costs. 38 U.S.C.A. § 3014(a). License and Certification Tests The term "program of education" for Chapter 30 benefits 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 are approved by the Secretary in accordance with 38 U.S.C.A. § 3689. 38 C.F.R. § 3002(3), 3452(b). No payment may be made for a licensing or certification test unless (1) the test has been approved under section 3672(b)(2)(B); (2) the Secretary determines that the test is required under Federal, State or local law or regulation for an individual to enter into, maintain, or advance in employment in a predetermined and identified vocation or profession; or, (3) the test is generally accepted in accordance with relevant government, business, or industry standards, employment policies or hiring practices as attesting to a level of knowledge or skill required to qualify to enter into, maintain, or advance in employment in a predetermined and identified vocation or profession. 38 U.S.C.A. § 3689(b). Under 38 U.S.C.A. § 3672(b)(2)(B), a licensure test offered by a Federal, State, or local government is deemed to be approved. The implementing regulations additionally note that, in administering benefits under Chapter 30, courses must be approved by the State approving agency (SAA) for the State in which the educational institution is located or otherwise has approval authority or by VA. 38 C.F.R. § 21.7220(a). In approving licensing and certification tests, VA and the SAA should apply 38 C.F.R. § 21.4250, and 21.4268. 38 C.F.R. § 21.7220(b). These regulations provide details outlining the requirements for approval and the application process the school should take to obtain approval of the licensing and certification test. Flight Training Programs The pursuit of flight training may be approved for an individual entitled to educational assistance benefits if (1) such training is generally accepted as necessary for the attainment of a recognized vocational objective in the field of aviation; (2) the Veteran possesses a valid private pilot's license and meets the medical requirements necessary for a commercial pilot's license; and (3) the flight school courses meet Federal Aviation Administration (FAA) standards and are approved by the FAA and the SAA. 38 U.S.C.A. § 3034. 38 U.S.C.A. § 3680A clearly specifies that, except to the extent otherwise specifically provided for in chapter 36 of title 38 or under Chapter 106 of title 10, the Secretary shall not approve the enrollment of an eligible Veteran in any course of flight training other than one given by an educational institution of higher learning for credit toward a standard college degree that the eligible Veteran is seeking. 38 U.S.C.A. § 3680A (b). 38 U.S.C.A. § 3672 explains that a flight training course approved by the FAA that is offered by a certified pilot school that possesses a valid FAA pilot school certificate is deemed to be approved. Chapter 106 of title 10 of the United States Code does not include additional guidance as to flight training courses. As explained above, the implementing regulations note that, in administering benefits under Chapter 30, courses must be approved by the SAA or by VA. 38 C.F.R. § 21.7220(a). In approving flight training courses, VA and the SAA should apply 38 C.F.R. § 21.4263. 38 C.F.R. § 21.7220 (c). Under 38 C.F.R. § 21.7222(b), under Chapter 30, the Secretary and/or the SAA may not approve an enrollment by a Veteran or service member in a flight training course unless the course meets the requirements of 38 C.F.R. § 21.4263. Under 38 C.F.R. § 21.4263(e), a flight training course that is not part of a degree program is subject to the same approval requirements as any other course. The SAA must apply the following provisions to the approval of flight courses: the FAA must approve the course; the course must meet the requirements of 14 C.F.R. chapters 63 or 141; and, the courses need to be offered by a flight school or a flight simulator pursuant to a grant of an exemption letter issued by FAA. Analysis In the present case, there is conflicting evidence as to what course the Veteran completed. Significantly, CAE SimuFlite and WEAMS indicate that neither the C-121 nor the Lear Jet 35 courses were approved as a licensing and certification test. As such, the Board is bound by the laws and regulations, and reimbursement for licensing and certification is not warranted. 38 U.S.C.A. § 3672, 3689. The record reflects, however, that the Lear Jet 35 course offered by CAE SimuFlite has been approved for VA flight training purposes. As such, the case turns upon whether the Veteran completed the Lear Jet 35 course. While the Veteran asserts that he took the Lear Jet 35 course, the Board does not find his statement to be credible. Although the Veteran is competent to describe the course he took, in this case the evidence of record contradicts his assertion. Barr v. Nicholson, 21 Vet. App. 303 (2007); Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). As noted above, the invoice from CAE SimuFlite indicates that the Veteran took the C-21A type/ATP course. Similarly, the certifying official of CAE SimuFlite reported that the Veteran took a Concentration 121 course, the Air Force version of the Lear Jet 25/35 course. In fact, the Veteran's own statements on his substantive appeal suggest he did not take the Lear Jet 35 course. Rather, he indicated he took a similar course designed for the Air Force and that CAE SimuFlite ultimately informed him that they did not intend to seek approval of the version of the course he took. Additionally, the RO requested documentation from the Veteran to prove he took the Lear Jet 35 course; however, the Veteran did not respond. It has been held in this regard that "[t]he duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). VA's duty is just what it states, a duty to assist, not a duty to prove a claim with the claimant only in a passive role. Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992); Olsen v. Principi, 3 Vet. App. 480 (1992). In light of the above evidence, the Board finds the Veteran took the Concentration 121 course. A review of the record reflects that the Concentration 121 course has not been approved. See statements of CAE SimuFlite certifying official and WEAMS printout. The laws and regulations are clear that the Secretary may not approve any course of flight training other than those which have been approved. 38 U.S.C.A. § 3680A (provided for credit toward a standard college degree or those approved by the FAA), 3672(allowing approval for those courses approved by FAA); 38 C.F.R. § 21.7222(b). As the Concentration 121 course has not been approved, the claim for education benefits must be denied. The RO has advised the Veteran of the process to seek to have his program approved. However, there is no indication that the Veteran or CAE SimuFlite has sought to obtain approval of this course under the applicable regulations. Finally, the Board notes the Veteran's argument concerning the inequity of having an approved program for civilians (the Lear Jet 25/35 course) and an unapproved program for Air Force. While the Board sympathizes with the Veteran's position, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). It has been observed that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 433 (1992). Accordingly, the claim must be denied. ORDER Educational assistance benefits under Chapter 30, Title 38, United States Code, for flight training courses taken in July 2007 is denied. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs