Citation Nr: 1300829 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 10-36 650 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to education benefits under Chapter 30, Title 38, United States Code (the Montgomery GI Bill), specifically for reimbursement of a licensing and certification test fees incurred on December 3, 2008, and March 2, 2009. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from July 2001 to July 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an administrative decision by the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied the Veteran's claim for reimbursement of a certification/licensing test fees. The Veteran disagreed with that decision and initiated this appeal. In May 2012, the Veteran proffered testimony before the undersigned via a videoconference hearing with the Veteran sitting in San Diego, California, while the VLJ was in Washington, DC. A transcript of that hearing was accomplished and has been included in the claims folder for review. FINDINGS OF FACT On April 26, 2010, the Veteran filed a claim for additional Chapter 30 education benefits for reimbursement of certification examinations fees incurred on December 3, 2008, and March 2, 2009. CONCLUSION OF LAW The Veteran's claim for reimbursement of education benefits under Chapter 30, Title 38, United States Code, was not timely filed. 38 U.S.C.A. § 5101, 5103, 5113 (West 2002); 38 C.F.R. §§ 21.1029, 21.1032, 21.7131 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks Chapter 30 educational assistance benefits in the form of reimbursement in the amounts of $1400.00 (US dollars) and $1400.00 (US dollars) for certification and/or licensing test fee for a test taken (or fee incurred) on December 3, 2008, and March 2, 2009. The RO has denied his claim and he has appealed to the Board for review. The Board has reviewed all the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Also, the Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). The Board must make a determination as to the applicability of the VCAA to a particular claim. Holliday v. Principi, 14 Vet. App. 280, 282-83 (2001). The provisions of the VCAA are not applicable in cases, such as this, in which the law, and not the underlying facts or development of the facts, is dispositive of the matter. See Manning v. Principi, 16 Vet. App. 534 (2002), citing Livesay v. Principi, 15 Vet. App. 165 (Aug. 30, 2001). The outcome of this case is determined on the basis of the Veteran's application for reimbursement of fees paid for testing on December 3, 2008, and March 2, 2009. The date of his claim for reimbursement is not in dispute. There are no pertinent facts in dispute, and even if all of the Veteran's contentions were accepted, the outcome would not change. The Board concludes that the provisions of the VCAA are not applicable to this particular matter. See also Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) and Mason 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"). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) interpreted 38 C.F.R. 3.103(c)(2) too require that VA employees, including Board employees who conduct a hearing have a duty to (1) fully explain the issue(s) and (2) suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted that basis of the prior determination and noted the elements of the claims that were lacking to substantiate the claim for benefits. Questions were asked in an effort to determine whether there was evidence of an earlier claim. The undersigned sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. As such, the Board complied with the Bryant requirements. II. Pertinent Law and Regulations The law provides that each eligible person shall, subject to certain provisions, be entitled to receive educational assistance. See 38 U.S.C.A. § 3011 (West 2002). For purposes of payment under Chapter 30, United States Code, for a licensing or certification test, the test is deemed to be a "course" and the organization or entity that offers such test is deemed to be an "institution" or "educational institution", respectively, as those terms are applied to the administration of educational benefits. See 38 U.S.C.A. § 3689 (West 2002). The term "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 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 according with section 3689 of this title. See 38 U.S.C.A. § 3501(a)(5) (West 2002); see also VA circular 22-01-1. In order for an eligible individual to claim educational assistance for pursuit of a program of education, the individual must file a formal claim. See 38 U.S.C.A. § 3034(a) (West 2002); 38 C.F.R. § 21.1030 (2012). Under 38 C.F.R. § 21.1029(b) (2012), 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. 38 C.F.R. § 21.1029(b) (2012). The date on which an award of Chapter 30 educational assistance benefits commences is the latest of the following dates: (1) the date the educational institution certifies the enrollment; (2) the date one year before VA receives the veteran's application; (3) the effective date of the approval of the course, or one year before the date VA receives the approval notice, whichever is later. 38 C.F.R. § 21.7131(a)(1) (2012). Accordingly, Chapter 30 educational benefits are not payable for any period earlier than one year prior to the date of the receipt of the application or enrollment certification, whichever is later. If the veteran is seeking a second or subsequent award of educational assistance for the program of education the veteran or service member is pursuing, the effective date of the award of educational assistance is the later of the date the educational institution certifies under paragraph (b) or (c) of this section; or the effective date of the approval of the course, or one year before the date VA receives the approval notice, whichever is later. See 38 C.F.R. § 21.7131(a)(2) (2012). III. Factual Background On April 26, 2010, the RO received the Veteran's request in writing for compensation, in the form of reimbursement, for the costs and fees associated with the taking of certification/licensing tests taken on December 3, 2008, March 2, 2009, September 28, 2009, March 26, 2009, and April 19, 2010. The RO issued an administrative decision on May 10, 2010, informing the Veteran that it would be reimbursing him for tests taken on September 28, 2009, May 26, 2009, and April 19, 2010. However, reimbursement for the examinations taken on December 3, 2008, and March 2, 2009, was not possible because the tests were taken more than a year from the date in which he requested reimbursement. Following notification of that administrative action, the Veteran submitted a notice of disagreement, a substantive appeal, and proffered testimony before the Board. In essence, the Veteran argued that he was unaware of the process and procedures for requesting reimbursement for testing fees and that VA was not forthcoming in telling him that he could ask for those benefits. He further asserted that as soon as he learned of the ability to apply for said benefits, he did so. He has contended that his tardiness in applying for the benefits should not be held against him; since he did not know of the program for reimbursement. IV. Analysis In this case, the issue is not whether the claimant is eligible for Chapter 30 benefits because VA has already determined that he is eligible. Rather, the issue is whether the Veteran is entitled to payment of educational assistance based on whether he timely filed a claim for reimbursement of a professional certification/licensing tests taken on December 3, 2008, and March 2, 2009. To address this issue, the Board must apply the criteria governing commencing dates of Chapter 30 benefits. There is no dispute that the Veteran filed the claim in April 2010 for reimbursement for five different certification and licensing tests taken in 2008, 2009, and 2010; including for tests taken in December 2008 and March 2009. For these two tests, the Veteran's date of claim is more than one year after the date of the test. VA educational assistance is not payable for reimbursement of test fees taken more than one year prior to the date of the Veteran's application for benefits. In this case, the applicable regulations state that if the award (of educational assistance under Chapter 30) is the first award of educational assistance for the program of education the Veteran is pursuing, the commencing date of the award of educational assistance is the latest of the date the educational institution certifies; one year before the date of claim as determined by 38 C.F.R. § 21.1029(b) (2012). Under this regulation payment is barred for reimbursement of test fees for tests taken over one year prior to the date of the Veteran's claim for benefits. The undisputed evidence in this case shows that the earliest claim filed by the Veteran for educational assistance in the form of reimbursement for professional tests taken on December 3, 2008, and March 2, 2009, was not received until April 26, 2010. Therefore, under the regulations, the Veteran may not be paid educational assistance benefits for these test fees any earlier than April 26, 2009. The regulations specifically prohibit payment of benefits prior to the date one year before receipt of the claim. The Board has no authority to overturn or to disregard this very specific limitation on the award of Chapter 30 educational benefits. The Board is bound in its decisions by the regulations. See 38 U.S.C.A. § 7104(c) (West 2002). Although 38 U.S.C.A. § 5113 (West 2002) provides that effective dates of awards of Chapter 30 benefits shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation, the Board cannot ignore the specific regulations which provide that the commencing date of an award of educational assistance shall not be earlier than the date one year prior to the date of receipt of the application or enrollment certification. In any event the regulation is consistent with laws and regulations governing payment of compensation, inasmuch as compensation is not payable for any period more than one year before a claim is received. See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400 (2012). The Board has considered the Veteran's contention that he was not notified of his eligibility for reimbursement for professional tests and that he should not be penalized because of VA's failure to properly inform him of his entitlement to such a benefit. However, the Board is bound by the law and is without authority to grant benefits that are not authorized by statute or regulation. See 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board has decided this case based on its application of this law to the pertinent facts. Moreover, ignorance cannot be used as an excuse for failure to follow a promulgated statute or regulation. See Morris v. Derwinski, 1 Vet. App. 260 (1991), citing Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-85 (1947); See also Velez v. West, 11 Vet. App. 148, 156-57 (1998). The Court in Morris noted that the Supreme Court of the United States had held that persons dealing with the Government were charged with knowledge of Federal statutes and lawfully promulgated agency regulations, regardless of actual knowledge or hardship resulting from innocent ignorance. Morris, 1 Vet. App. at 265; see Fed. Crop Ins. Corp. v. Merrill. The Veteran has also contended in essence that he should have been informed by various personnel regarding his entitlement status, but was not. In this regard, the Court has held that the remedy for breach of any obligation to provide accurate information about eligibility before or after discharge cannot involve payment of benefits where the statutory eligibility requirements for those benefits are not met. See McTighe v. Brown, 7 Vet. App. 29, 30 (1994) (holding that because the payment of government benefits must be authorized by statute, the fact that a veteran may have received erroneous advice from a government employee cannot be used to estop the government from denying benefits). In summary, although the Board can certainly understand the Veteran's regret at having missed the statutory deadline for filing his claim for reimbursement for the professional tests he took in December 2008 and March 2009, the pertinent facts in this case are not in dispute and the law is dispositive. The Veteran's claim must therefore be denied because it is without legal merit. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER The claim for entitlement for reimbursement of Chapter 30 education benefits for licensing and certification fees incurred on December 3, 2008, and March 2, 2009, is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs