Citation Nr: 1307804 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 10-40 975 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office, Muskogee Education Center, in Muskogee, Oklahoma THE ISSUE Entitlement to an effective date earlier than February 6, 2008 for the grant of educational benefits under Chapter 30, Title 38, United States Code for a correctional officer on-the-job training program with Kern Valley State Prison. ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from November 1998 to November 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 administrative decision regarding entitlement to education benefits by the Education Center at the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran seeks Chapter 30 educational assistance benefits for Correctional Office Apprenticeship Program at Kern Valley State Prison for the period from February 27, 2006 to February 27, 2008. The RO granted the Veteran education benefits under the Montgomery GI Bill (MGIB) for Correctional Officer training at Kern Valley State prison for the period from February 6, 2008 to February 27, 2008. VA will pay educational assistance to a Veteran pursuing a program of apprenticeship or other on-the-job training only after 1) the training establishment has certified his enrollment in the training program as provided in 38 C.F.R. § 21.7152; and 2) VA has received from the Veteran and the training establishment a certification of hours worked. 38 U.S.C.A. §§ 3034, 3680; 38 C.F.R. § 21.7140(c)(2). Section 21.7152 provides that the educational institution must certify the Veteran's or service member's enrollment before he or she may receive educational assistance. This certification must be in a form specified by the Secretary and contain such information as the Secretary may specify. 38 C.F.R. § 21.7152 An otherwise eligible Veteran shall receive Chapter 30 benefits only when enrolled in a course of education which has been approved by the approving agency for the State where the educational institution is located. 38 U.S.C.A. §§ 3034, 3672. With regard to approval of training on-the-job, a State approving agency may approve such a program only after reviewing various factors, including the wages to be paid to Veteran participants, the training content of the course; the length of the training period; considerations including space, equipment, instructional material, and instructor personnel; record-keeping by the course provider, and other factors defined by law. The training establishment is required to submit a written application for approval which covers all these factors. 38 U.S.C.A. §§ 3034, 3677. Upon determining that an educational institution has complied with all requirements, the State approving agency will issue a letter to such institution containing information including the date of the letter, and the effective date of approval of the courses. 38 U.S.C.A. §§ 3034, 3678. Furthermore, State approving agencies are required to report their activities to VA on a monthly or quarterly basis. 38 C.F.R. § 21.4154. VA will determine the commencing date of an award or increased award of educational assistance based upon very specific governing regulations. When more than one potential provision in the regulation applies, VA will award educational assistance using the latest of the applicable commencing dates. 38 C.F.R. § 21.7131. The Board has determined that this is a subsequent award of educational assistance as the Veteran received prior educational benefits under Chapter 30, Title 38 of the United States Code and the objectives of the courses or training are related to a single carrier field as a correctional officer. See 38 C.F.R. § 21.35(c)(2). If the award is the second or subsequent award of educational assistance for the program of education the veteran or servicemember is pursuing, the effective date of the award of educational assistance is the later of: (A) The date the educational institution certifies under paragraph (b) or (c) of this section; or (B) 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)(ii). In the context of on-the-job training programs, the date the educational institution certifies is defined as the first date of employment in the training position. 38 C.F.R. §, 21.7131(c)(3). Section 21.1029 defines the date of claim as 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). Applying the provisions of 21.7131(a) to the Veteran's situation yields the conclusion that the latest of all potential dates is most likely the effective date of the approval of the course, or one year before the date VA received the approval notice, whichever is later. The first possibility (i), is the first date of the Veteran's employment in the training position, or February 27, 2006. The second possibility (ii) is the effective date of the approval of the course, or February 6, 2008. Of these two, the later date is February 6, 2008. The Board finds that further evidentiary development is necessary before the third possibility may be calculated. In this regard, the claims file does not contain the date VA received the approval notice from the State approving agency. Such information should be obtained and associated with the record prior to a final decision in this matter. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain evidence, such a date stamp, or e-mail identifier, showing when documentation of approval of the Correction Officer on-the-job training program at Kern Valley State Prison was received by the by VA. If the document(s) does not resolve the question of the date VA received the approval notice, then the appropriate monthly or quarterly report from the State approving agency to VA should be copied for the Veteran's file, as well. 2. After the development requested above has been completed, readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, the Veteran and should be provided with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2012). _________________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).