Citation Nr: 1311018 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 10-43 299 ) DATE ) ) On appeal from the Department of Veterans Affairs National Education Center in Muskogee, Oklahoma THE ISSUE Entitlement to Dependents Educational Assistance (DEA) benefits for the appellant's enrollment at the University of Phoenix Online Campus for the terms September 22 to October 20, 2009 and October 27 to November 24, 2009. ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The appellant is a child of a Veteran, who has been awarded DEA benefits. She appeals the October 2009 determination by the Department of Veterans Affairs (VA) National Education Center (NEC) in Muskogee, Oklahoma which denied the benefits sought on appeal. A notice of disagreement was received in June 2010, a statement of the case was issued in August 2010, and a substantive appeal was received in October 2010. FINDINGS OF FACT 1. VA authorized and paid the appellant for enrollment in courses at Bakersfield College from August 24 to December 11, 2009 in pursuit of its Associates of Arts degree in Business Administration. 2. The appellant's enrollment at the University of Phoenix Online Campus from September 22 to October 20, 2009 and from October 27 to November 24, 2009 was for courses that did not apply toward the pursuit of her degree at Bakersfield College. It was not part of her approved program at Bakersfield College. CONCLUSION OF LAW The criteria for entitlement to DEA benefits for enrollment at the University of Phoenix Online Campus for the terms September 22 to October 20, 2009 and October 27 to November 24, 2009 are not met. 38 C.F.R. §§ 21.4233, 21.7020 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist a claimant, as provided in 38 C.F.R. §§ 21.1031, 21.1032 (2012). However, according to 38 C.F.R. § 21.1031, no additional notice is required, since undisputed facts render the claimant ineligible for the claimed benefit. 38 C.F.R. § 21.1031. Furthermore, according to 38 C.F.R. § 21.1032, no additional assistance is necessary, as evidence indicates that there is no reasonable possibility that further assistance would substantiate the claim. 38 C.F.R. § 21.1033. The question to be resolved in this case is whether the appellant's enrollment at the University of Phoenix Online Campus for the terms September 22 to October 20, 2009 and from October 27 to November 24 may be compensated. Generally, VA will authorize payment of educational assistance for an individual's enrollment in any course or subject which a State approving agency has approved as provided in 38 C.F.R. § 21.7220, and which forms a part of a program of education as defined in 38 C.F.R. § 21.7020(b)(23). A "program of education," in pertinent part, is a combination of subjects or unit courses pursued at an educational institution. The combination generally is accepted as necessary to meet requirements for a predetermined educational, professional or vocational objective. It may consist of subjects or courses which fulfill requirements for more than one objective if all objectives pursued are generally recognized as being related to a single career field. 38 C.F.R. § 21.7020(b)(23). Under 38 C.F.R. § 21.4233, an approved program may consist of courses offered by two schools concurrently. A school may contract the actual training to another school or entity, provided the course is approved by the State approving agency having approval jurisdiction of the school or entity which actually provides the training. The provisions of 38 C.F.R. § 21.4233(b) indicate that where an eligible person cannot successfully schedule his or her complete program at one school, a program of concurrent enrollment may be approved. When requesting such a program, the eligible person must show that his or her complete program of education or training is not available at the school in which he or she will pursue the major portion of his or her program (the primary school), or that it cannot be scheduled successfully within the period in which he or she plans to complete his or her program. On September 15, 2009, VA received the appellant's enrollment certification from Porterfield College. The school certified the appellant in 2 credit hours for the term August 24 to December 12, 2009. The school reported that the course would be applied to a degree program at Bakersfield College. An approval letter was on file. On September 15, 2009, VA received the appellant's enrollment certification from Bakersfield College. The school certified the claimant's enrollment in 3 credit hours for the term August 24 to December 11, 2009. The appellant enrolled in the Associates of Arts degree in Business Administration. On September 18, 2009, VA awarded the appellant DEA benefits for training through Bakersfield College beginning July 17, 2009 through December 11, 2009. On October 19, 2009, VA received the appellant's notice of change in program or place of training. The appellant requested to change schools to the University of Phoenix. On that date, VA received the appellant's enrollment certificate from the University of Phoenix. The school certified the appellant's enrollment in 3 credit hours for the terms September 22 to October 20, 2009, and from October 27 to November 24, 2009. The appellant enrolled in their Bachelor of Science degree in Business Administration with a Concentration in Administration. On October 27, 2009, VA denied the appellant DEA benefits for her enrollments at the University of Phoenix because she was receiving benefits for enrollment at Bakersfield College. The appellant was advised that VA cannot pay benefits for two separate programs at the same time that do not lead to the same educational objective. In August 2010, VA contacted Bakersfield College, whose certifying official reported that it was unaware that the appellant was attending the University of Phoenix. Therefore, the courses at the University of Phoenix would not apply towards her degree plan. VA also contact the University of Phoenix. Its certifying official reported that it was unaware that the appellant was attending Bakersfield College. Therefore, the courses would not apply towards her degree plan. The evidence in this case shows that the appellant was enrolled at two schools concurrently -- Bakersfield College and the University of Phoenix. This was after VA had received and approved an enrollment certification from Bakersfield College for an Associate of Arts in Business Administration. VA paid benefits for the appellant's enrollment at Bakersfield College for the term August 24 to December 11, 2009. Based on the evidence, VA cannot pay DEA benefits for the periods from September 22 to October 20, 2009 and October 27 to November 24, 2009 at the University of Phoenix because the courses taken at the University of Phoenix would not apply toward the appellant's approved program at Bakersfield College. There is no indication that the appellant could not have scheduled her complete program at Bakersfield College, and so the provisions of 38 C.F.R. § 21.4233, permitting compensation for concurrent enrollment under those circumstances, do not apply. The course she was enrolled in at University of Phoenix Online Campus did not apply to her degree at Bakersfield College, and Bakersfield College was not even aware that the appellant was attending the University of Phoenix. It was not part of her approved program at Bakersfield College. The appellant has indicated in her October 2010 substantive appeal that once she noticed that her online classes (at or through Bakersfield College) would not help her further her education when transferring to a 4-year university, she signed up to go to the University of Phoenix. She tried unsuccessfully to contact the VA representative at Bakersfield College, and thought she would be dropped from the classes at Bakersfield College since she did not attend. She was a full time student at the University of Phoenix from September to November 2009. While the Board is aware of and sympathizes with the appellant's arguments and concerns, the law prevents a favorable outcome. She had been approved for and enrolled at Bakersfield College in its Associates of Arts program in Business Administration when she concurrently enrolled at the University of Phoenix for its degree in Business Administration with a Concentration in Administration. The courses at the University of Phoenix did not apply toward the pursuit of her degree at Bakersfield College, it was not part of her approved program at Bakersfield College, and Bakersfield College was unaware that she was attending the University of Phoenix. These facts control the outcome. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER Entitlement to DEA benefits for the appellant's enrollment at the University of Phoenix Online Campus for the terms September 2 to October 20, 2009 and October 27 to November 24, 2009 is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs