Citation Nr: 1308029	
Decision Date: 03/11/13    Archive Date: 03/20/13

DOCKET NO.  10-40 703A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to payment of VA educational assistance benefits under 38 U.S.C.A. Chapter 30 (Montgomery GI Bill or MGIB) for an on-the-job training program from August 22, 2007, to August 7, 2008. 


ATTORNEY FOR THE BOARD

K. R. Fletcher, Counsel


INTRODUCTION

The Veteran had active service from April 1999 to April 2006. 

This matter is before the Board of Veterans' Appeals (Board) from a September 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.  

In addition to the paper education file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claims.  The documents in the VVA file confirm the Veteran's dates of service, but are otherwise either duplicative of the evidence in the paper education file or are irrelevant to the issue on appeal.


FINDINGS OF FACT

1.  The Veteran was certified by VA to receive Chapter 30 educational assistance benefits for courses taken from August 22, 2007, through December 15, 2007, January 9, 2008, through May 10, 2008, and June 3, 2008, through August 8, 2008. 

2.  Thereafter, in July 2008, the Veteran filed an application for Chapter 30 educational assistance benefits for the on-the-job training from July 22, 2007, through July 22, 2009. 

3.  The Veteran participated in two different educational pursuits, courses and on-the-job-training, from August 22, 2007, to August 7, 2008.


CONCLUSION OF LAW

The criteria are not met for entitlement to reimbursement for payment of educational assistance benefits under Chapter 30, Title 38, United States Code, for on-the-job training from August 22, 2007, to August 7, 2008.  38 C.F.R. § 21.5824(a) (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  

There are certain situations, however, when the VCAA does not apply.  The United States Court of Appeals for Veterans Claims has held that where the law, and not the underlying facts or development of the facts are dispositive in a case, the VCAA can have no effect on the appeal.  See Manning v. Principi, 16 Vet. App. 534, 542 (2002).  See also Smith v. Gober, 14 Vet. App. 227 (2002) (VCAA has no effect on appeal limited to interpretation of law); Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (VCAA not applicable where law, not factual evidence, is dispositive).  Moreover, VA's General Counsel has held that the notice and duty to assist provisions of the VCAA are not applicable to a claim, as here, where it cannot be substantiated because there is no legal basis for it, or because the undisputed facts render the claimant ineligible for the claimed benefit.  See VAOPGCPREC 5-2004 (June 23, 2004). 

The Board adds that general due process concerns have been satisfied in connection with this appeal.  See 38 C.F.R. § 3.103.  The Veteran has been accorded ample opportunity to present evidence and argument in support of his appeal.  Therefore, further discussion of the VCAA is not required.  See Bernard v. Brown, 4 Vet. App. 384, 392-394 (1993). 

Legal Criteria

Chapter 30 of Title 38, U.S. 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. §§ 3001-3021.  VA will approve and pay Chapter 30 educational assistance to an eligible veteran while he is pursuing approved courses in a program of education.  38 C.F.R. § 21.7130; 38 U.S.C.A. § 3002(3).  

A program of education, in pertinent part, is any unit course or subject or combination of courses or subjects, which is pursued at an educational institution; or an approved full-time program of apprenticeship or of other on-job training.  38 C.F.R. § 21.7020(b)(23). 

An individual who is receiving educational assistance under programs authorized by 38 U.S.C. Chapters 30, 31, 32, 34, 35, or 36 may not receive concurrently either educational assistance or subsistence allowance under the §§ 21.5700, 21.5800 and 21.5900 series of regulations for the same program of education, but may receive them sequentially.  38 C.F.R. § 21.5824(a).

Analysis

Here, the Veteran had been previously determined to be eligible for Chapter 30 education benefits while still on active duty.  

Pertinent to the claim herein, in August 2007, VA received an enrollment certification for 6 credit hours the Veteran was taking toward a master's degree at the University of Alabama for the time period from August 22, 2007, through December 15, 2007.  In January 2008, VA received an enrollment certification for 6 credit hours for the same program for the time period from January 9, 2008, through May 10, 2008.  In May 2008, VA received an enrollment certification for 12 credit hours for the same program for the time period from June 3, 2008, through August 8, 2008.  VA provided payment for these courses.

In July 2008 the Veteran submitted a Request for Change of Program or Place of Training for on-the-job training at the Federal Aviation Administration.  He also submitted enrollment certification for this on-the-job training for the period from July 22, 2007, through July 22, 2009.  

In a September 2009 determination, the RO awarded Chapter 30 benefits for on-the-job training from July 22, 2007, through August 21, 2007, and from August 9, 2008, though July 22, 2009.  The RO noted that no benefits could be awarded for the remaining period of the claim (from August 22, 2007, to August 7, 2008) because only one educational pursuit is permitted at any given time for receiving VA educational assistance benefits.  Thus, as the Veteran was already in receipt of Chapter 30 benefits from August 22, 2007, to August 7, 2008 for courses taken, he was not entitled such benefits for the same time period for on-the-job training.

It is clear from the evidence of record that the Veteran is not legally entitled to the benefits in question.  Under 38 C.F.R. § 21. 5824(a), the Veteran is not legally entitled to receive VA education benefits for both on-the-job training and school enrollment during the same time period from August 22, 2007, to August 7, 2008.  Because Chapter 30 benefits for school enrollment has previously been awarded, Chapter 30 benefits for on-the-job training must be denied.

The Veteran maintains that the on-the-job program in which he participated was a "new program" that did not exist when he began his course work.  Moreover, had he been given the choice, he would have chosen on-the-job training benefits instead of school enrollment benefits.  See October 2010 VA Form 9.  However, the fact remains that he submitted his course certification prior to his on-the-job training certification.

The Veteran's contentions have been sympathetically considered, but in this case, the applicable law and regulations as written preclude a grant of benefits, even on an equitable basis.  See 38 U.S.C.A. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  "No equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress."  Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992).  The Board is without the authority to disregard the applicable law, notwithstanding any extenuating circumstances that may have existed at the relevant time in question.  Congress did not enact any exceptions to the above-discussed legal provisions that would permit a grant of the requested education benefit.  As the disposition of this claim is based on the law, and not on the facts of the case, the claim must therefore be denied based on a lack of entitlement under the law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 


ORDER

Payment of VA educational assistance benefits under 38 U.S.C.A. Chapter 30 for an on-the-job training program from August 22, 2007, to August 7, 2008 is denied. 



____________________________________________
MARK W. GREENSTREET
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs