Citation Nr: 1323263	
Decision Date: 07/22/13    Archive Date: 08/01/13

DOCKET NO.  10-31 529	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

Entitlement to reimbursement under the Licensing and Certification program, for the cost of Certified Public Accountant (CPA) licensing tests (taken on November 6, 2006; May 22, 2007; August 21, 2007 and April 29, 2008).


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

A. Lindio, Counsel





INTRODUCTION

The Veteran served on active duty from January 1982 until February 2002.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision issued in April 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.  This matter is currently under the jurisdiction of the VA RO in Los Angeles, California.  

The Veteran provided testimony at a January 2011 hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of that hearing is associated with the claims file.  

The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  A review of the documents in such file reveals that they are irrelevant to the issues on appeal.

After the issuance of the June 2010 statement of the case, the Veteran submitted copies of documents showing that he is currently a CPA.  He submitted those documents with a waiver of agency of original jurisdiction (AOJ) consideration.  As such, the Board can make a decision on this claim.  38 C.F.R. § 20.1304(c) (2012).  


FINDINGS OF FACT

1. The Veteran had previously been awarded Chapter 30 VA education benefits at the time he took CPA licensing examinations on November 6, 2006; May 22, 2007; August 21, 2007 and April 29, 2008.

2. On April 12, 2010, VA received the Veteran's application for reimbursement of examination fees for CPA licensing tests that he had taken approximately two or more years earlier.  

3. There is no objective evidence that the Veteran submitted an application for reimbursement of fees for the aforementioned CPA licensing tests prior to April 12, 2010.  


CONCLUSION OF LAW

The requirements for reimbursement of the Veteran for costs associated with his CPA licensing tests (taken November 6, 2006; May 22, 2007; August 21, 2007 and April 29, 2008) have not been met. 38 U.S.C.A. §§ 3002(3)(A), 3452(b), 3689 (West 2002); 38 C.F.R. §§ 21.1029(b), 21.4131(a)(2)(iii) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist
 
As a preliminary matter, the Board observes that the record on appeal does not reflect that the Veteran was notified of the Veterans Claims Assistance Act of 2000 (VCAA) as required by 38 U.S.C.A. § 5103(a).  However, it is apparent that such notice is not required in this case since the benefits sought are found in Chapter 30 of Title 38, United States Code. See Sims v. Nicholson, 19 Vet. App. 453, 456 (2007) (holding that the VCAA applied only to the award of benefits under Chapter 51, Title 38, United States Code); Barger v. Principi, 16 Vet. App. 132, 138 (2002) (the notice and duty to assist provisions of the [VCAA]. . . are relevant to a different Chapter of Title 38 and do not apply to this appeal).

In addition, as will be explained below, it is the law, and not the evidence, that is dispositive in this case.  The United States Court of Appeals for Veterans Claims (Court) has held that where the law, and not the underlying facts or development of the facts, are dispositive in a matter, the VCAA can have no effect on the appeal. Manning v. Principi, 16 Vet. App. 534 (2002); 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 (2002) (VCAA not applicable where law, not the factual evidence, is dispositive).  Therefore, the Board finds that no further action is necessary under VCAA, since the law, not the evidence, is dispositive in this case.

Merits of the Claim
 
The facts of the case are not in dispute.  An April 2002 decision had awarded the Veteran VA educational benefits under Chapter 30.  A Credit Status Information report documents that the Veteran took (and passed) CPA examinations on November 6, 2006; May 22, 2007; August 21, 2007 and April 29, 2008.  According to an April 2010 spreadsheet provided by the Veteran, the total cost of his CPA licensing fees (including application for licensure, initial licensing and examinations) was $1,342.47.   In April 2010, approximately two years after the last examination was taken, VA received the Veteran's claim for reimbursement for the costs of the tests. A review of the Veteran's education folder does not demonstrate that a claim for reimbursement in this regard was received any earlier than April 2010.  During his January 2011 Board hearing, the Veteran verified that he had not submitted an application for benefits prior to April 2010.  

The provision of Chapter 30 of Title 38, 38 U.S.C.A. § 3002(3)(A) (West 2002), defines 'program of education' to have the meaning given this term in 38 U.S.C.A. § 3452(b) (West 2002).  38 U.S.C.A. § 3452(b), in turn, defines the term "program of education" to include "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 in employment in a predetermined and identified vocation or profession."  The tests and licensing or credentialing organizations or entities that offer such tests must be approved by the Secretary of VA in accordance with 38 U.S.C.A. § 3689 (West 2002).

The appellant in this case does not dispute that he initially filed his claim in April 2010 for the reimbursement of fees for professional tests taken from November 2006 to April 2008.  In an April 2010 statement, and during the January 2011 Board hearing, the Veteran reported that prior to beginning the CPA certification process he had contacted VA to ask about financial reimbursement.  He indicated that a VA representative told him testing might be reimbursed if it led to certification.  The Veteran implied that he took that explanation to mean that he should apply for reimbursement after he was certified.  He further indicated that he relied on a VA pamphlet which a "contains non-mandatory statement" for the reimbursement time frame.  The VA pamphlet, provided by the Veteran, states "Generally we must receive your request within on [sic] year of when you took the test."

The Veteran's essential contention is that VA waive the applicable time limit requirements in the interests of equity and reimburse him for the costs of the CPA certification tests that he took between November 2006 to April 2008.

Although the Board notes the ambiguity of the VA pamphlet provided by the Veteran, the applicable regulations are very clear about the time limits on which reimbursement of costs for licensing or certification tests may be paid. 38 C.F.R. § 21.4131(a)(2)(iii) provides that VA will award educational assistance for the cost of a licensing or certification test no more than one year before the date VA receives a claim for reimbursement of the cost of the test.

The "date of claim" is defined 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).

Thus, by law, educational benefits cannot be awarded prior to one year before the claim was received.  No exceptions to the controlling legal criteria have been provided, and the Board has no authority to overturn or to disregard this very specific limitation on the award of Chapter 30 educational benefits.

The undisputed evidence in this case shows that the Veteran's claim for reimbursement of costs relating to professional tests taken between November 2006 and April 2008 for his CPA testing was not received any earlier than April 12, 2010.  Therefore, under the regulations, he may not be paid educational assistance benefits for these test fees any earlier than April 12, 2009.  The regulations specifically prohibit payment of benefits prior to the date one year before receipt of the claim.  38 U.S.C.A. § 3501 (West 2002); 38 C.F.R. §§ 21.3130(e), 21.4131 (2012).  The Veteran's claim must therefore be denied because it is without legal merit. See Sabonis v. Brown, 6 Vet. App. 426 (1994).  Where the law, rather than the facts, is dispositive, the benefit of the doubt provisions as set forth in 38 U.S.C.A. § 5107(b) (West 2002) are not for application.

To the extent the Veteran argues that the VA supplied him with misinformation upon which he relied, such as the VA pamphlet, the Board notes that any contention that VA in fact misinformed the Veteran fails as a matter of law.  See McTighe v. Brown, 7 Vet. App. 29, 30 (1994); see also Office of Personnel Management v. Richmond, 496 U.S. 414 (1990) (payment of government benefits must be authorized by statute; therefore, erroneous advice given by a government employee cannot be used to estop the government from denying benefits).

There can be no doubt from review of the record that the Veteran rendered honorable and faithful service for which the Board is grateful.  However, the Board has carefully reviewed the record in depth and it has been unable to identify a basis upon which service connection may be granted.  The Board is bound by the law and is without authority to grant benefits on an equitable basis.  See 38 U.S.C.A. §§ 503, 7104; 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. See Owings v. Brown, 8 Vet. App. 17 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171 (1992) (noting that the Court must interpret the law as it exists, and cannot extend benefits out of sympathy for a particular claimant).


ORDER

Reimbursement for the costs of CPA licensing tests (taken on November 6, 2006; May 22, 2007; August 21, 2007 and April 29, 2008) is denied.


____________________________________________
MARJORIE A. AUER  
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs