Citation Nr: 1301355 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 09-28 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to education assistance benefits under Chapter 31, Title 38, United States Code to pay for a Doctor of Philosophy (PhD) at a foreign university. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from November 1997 to June 2001. This matter has come before the Board of Veterans' Appeals (Board) on appeal from an October 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania that denied entitlement to education assistance benefits under Chapter 31, Title 38, United States Code to pay for a PhD at a foreign university. Previously, the Veteran withdrew her appeal of a July 2007 decision of the VA RO in Philadelphia, Pennsylvania that denied entitlement to education assistance benefits under Chapter 31, Title 38, United States Code to pay for a PhD at a foreign university. FINDINGS OF FACT 1. The Veteran had an individualized written rehabilitation plan created on June 1, 2004, that had a long-term goal to obtain and maintain employment in the field of genetics and an intermediate objective of completing a PhD program in genetics. 2. This individualized written rehabilitation plan expired on June 1, 2008. 3. In 2006, the Veteran completed a Master of Science in applied genetics. 4. In 2007, the Veteran left the United States and was accepted at a university in Great Britain to pursue a PhD in physiology, anatomy, and genetics. 5. On February 6, 2008, VA informed that the Veteran the June 2004 individualized written rehabilitation plan was still in effect and that she would need to reside in the United States and pursue a PhD in genetics in this country or meet the hardship requirements for living overseas, such as being married to a foreign national or having a child who needed to be cared for in a foreign country. 6. On February 9, 2008, the Veteran was placed in interrupted stasis. 7. The Veteran did not meet the hardship requirements for living overseas to qualify to pursue a PhD in genetics at a foreign university when her individualized written rehabilitation plan expired on June 1, 2008, because she did not marry a British national until July 2008, because she did not have a child who potentially needed to be cared for in a foreign country until January 2009, and because she did not have a job that required her to be overseas. 8. At the time the Veteran left the United States and at the time her individualized written rehabilitation plan expired on June 1, 2008, she wanted to study in Great Britain to be with her boyfriend who she did indeed later marry. 9. The Veteran's failure to meet the requirements for hardship requirements for living overseas to qualify to pursue a PhD in genetics at a foreign university when her individualized written rehabilitation plan expired on June 1, 2008, was unsatisfactory conduct or cooperation because she did not conform to procedures established by VA governing pursuit of a rehabilitation plan. CONCLUSION OF LAW The criteria for entitlement to education assistance benefits under Chapter 31, Title 38, United States Code to pay for a PhD at a foreign university have not been met. 38 U.S.C.A. §§ 3137, 5102, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 21.84, 21.94, 21.197, 21.362, 21.1031, 21.1032 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in a February 2008 correspondence of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim being adjudicated. The appellant submitted evidence that she left the United States and was accepted at a university in Great Britain to pursue a PhD in physiology, anatomy, and genetics. She also submitted evidence that she married a British national in July 2008. The Veteran was provided the opportunity to meaningfully participate in the adjudication of her claim and did in fact participate. See Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Governing law and regulations Chapter 31 of Title 38, United States Code, sets forth provisions to allow for educational assistance for members of the Armed Forces after their separation from military service. See 38 U.S.C.A. §§ 3100 et seq. (West 2002). The purposes of the individualized written rehabilitation plan are the following: identify gales and objectives to be achieved by a veteran during the period of rehabilitation services that will lead to the point of employability; plan for placement of a veteran in the occupational field for which training and other services will be provided; and specify the key services needed by a veteran to achieve the goals and objectives of the plan. Intermediate objectives are statements of achievement expected of a veteran to attain the long-range goal. 38 C.F.R. § 21.84. A comprehensive review of the plan is required every year. 38 C.F.R. § 21.96. A change in the statement of a long-range goal may only be made following a reevaluation of a veteran's rehabilitation program by a VA counseling psychologist. 38 C.F.R. § 21.94(b). A change in an intermediate objective or service provided under the plan may be made by the case manager when such change is necessary to carry out the statement of long-range goals. 38 C.F.R. § 21.94(c). Examples of hardship requirements for living overseas include being married to a foreign national, having a job that requires you to be overseas, and having children that needed to be cared for in a foreign country. An example of a non-hardship condition is that a veteran wants to study in a foreign area for personal reasons. M28, Part IV, Subpart vii, Chapter 3. The purpose of interrupted states is to recognize that a variety of situations may arise in the course of a rehabilitation program in which a temporary suspension of the program is warranted. 38 C.F.R. § 21.197(a). If a veteran's conduct or cooperation becomes unsatisfactory, services and assistance may be interrupted as determined under the provisions of 38 C.F.R. §§ 21.362 and 21.264 (2012). 38 C.F.R. § 21.197(c)(2). 38 C.F.R. § 21.362(c)(4) provides that a veteran must conform to procedures established by VA governing pursuit of a rehabilitation plan. Analysis The Veteran had an individualized written rehabilitation plan created on June 1, 2004, that had a long-term goal to obtain and maintain employment in the field of genetics and an intermediate objective of completing a PhD program in genetics. This individualized written rehabilitation plan indicates that it expired on June 1, 2008. In 2006, the Veteran completed a Master of Science in applied genetics. She left the PhD program in Connecticut because her advisor had retired, and she moved to Pennsylvania where she got a job. On April 9, 2007, the Veteran met with VA and signed a new individualized written rehabilitation plan in which the long-term goal was changed to acquire and maintain entry-level employment in the occupational goal of a scientist or biologist. She recanted her signature on the new individualized written rehabilitation plan via e-mail later that day. This change was not made following a reevaluation of a veteran's rehabilitation program by a VA counseling psychologist. The intermediate objective was changed to acquire and maintain entry-level employment in the occupational goal of a scientist or biologist. The Veteran then left the United States with her future husband, a British national, and later in 2007 was accepted at a university in Great Britain to pursue a PhD in physiology, anatomy, and genetics. In a November 2007 e-mail, a VA vocational rehabilitation counselor at the VA Central Office determined that VA would have to honor the original June 2004 individualized written rehabilitation plan unless her disability had changed and the vocational goal was no longer appropriate. On February 6, 2008, VA informed that the Veteran the June 2004 individualized written rehabilitation plan was still in effect and that she would need to reside in the United States and pursue a PhD in genetics in this country or meet the hardship requirements for living overseas, such as being married to a foreign national or having a child who needed to be cared for in a foreign country. On February 9, 2008, the Veteran was placed in interrupted stasis. The Board also finds the April 2007 individualized written rehabilitation plan is not valid because the change of the long-term goal was not made following a reevaluation of a veteran's rehabilitation program by a VA counseling psychologist. 38 C.F.R. § 21.94(b). Therefore, the individualized written rehabilitation plan created on June 1, 2004, was still valid until June 1, 2008. In order for the Veteran to education assistance benefits under Chapter 31, Title 38, United States Code to pay for a PhD in genetics at a foreign university, she needed to have met the hardship requirements prior to June 1, 2008, the expiration date of the currently valid individualized written rehabilitation plan. The Veteran did not meet the hardship requirements for living overseas to qualify to pursue a PhD in genetics at a foreign university when her individualized written rehabilitation plan expired on June 1, 2008, because she did not marry a British national until July 2008, because she did not have a child who potentially needed to be cared for in a foreign country until January 2009, and because she did not have a job that required her to be overseas. At the time the Veteran left the United States and at the time her individualized written rehabilitation plan expired on June 1, 2008, she wanted to study in Great Britain to be with her boyfriend which is a personal reason. After being informed in February 2008 that she could qualify for the hardship requirement for living overseas if she were married to a foreign national, she did not immediately respond indicating an intent to marry her future husband. In fact, she admits that she only married her husband because of an unexpected pregnancy. Also, she could have returned to the United States after receiving the February 2008 correspondence authorizing payment for a PhD program in the United States. There is no evidence that the appellant had a job that required her to be overseas. The evidence shows that she last worked when she was in Pennsylvania. The claimant started her studies as a probationary research student. Even if being a research student was considered a job, this job was pursuant to her PhD program that she applied to in order to be with her then boyfriend. She was not required to move to Great Britain as condition of continued employment of a current job. In other words, the Veteran was not required to be overseas for employment. The Veteran's failure to meet the requirements for hardship requirements for living overseas to qualify to pursue a PhD in genetics at a foreign university when her individualized written rehabilitation plan expired on June 1, 2008, was unsatisfactory conduct or cooperation because she did not conform to procedures established by VA governing pursuit of a rehabilitation plan. Therefore, services and assistance may be interrupted. The Board concludes that the preponderance of the evidence is against granting education assistance benefits under Chapter 31, Title 38, United States Code to pay for a PhD at a foreign university. The benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to education assistance benefits under Chapter 31, Title 38, United States Code to pay for a PhD at a foreign university is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs