Citation Nr: 1324484 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 13-00 199A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office, Muskogee Education Center, in Muskogee, Oklahoma THE ISSUE Whether an overpayment of educational assistance benefits in the amount of $4,087.87 was properly created. ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from August 2001 to November 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal by the Education Center at the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. FINDINGS OF FACT 1. All relevant evidence necessary to decide the Veteran's appeal has been obtained. 2. The Veteran received VA educational assistance benefits for enrollment in a non-college degree training program from March 3, 2010 to May 30, 2011. 2. In February 2012, VA received notice that the Veteran's end of term or course was effective March 4, 2011, thereby creating a valid debt. CONCLUSION OF LAW The debt created by overpayment of educational assistance benefits in the amount of $4,087.87 is valid. 38 U.S.C.A. § 3323 (West 2002); 38 C.F.R. §§ 21.9635, 21.9695 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Legal Criteria and Analysis An overpayment is created when VA determines that a beneficiary or payee has received monetary benefits to which he or she is not entitled. See 38 U.S.C.A. § 5302 (West 2002); 38 C.F.R. § 1.962 (2012). An overpayment may arise from virtually any benefits program administered pursuant to VA law, including pension, compensation, dependency and indemnity compensation, educational assistance benefits and subsistence allowance, insurance benefits, burial and plot allowances, clothing allowances, and automobile or other conveyance and adaptive equipment allowances. See 38 C.F.R. § 1.956(a) (2012). In this case, the Veteran received Chapter 33 (Post-9/11 GI Bill) educational assistance benefits at the California Emergency Medical Services (EMS) Academy for a paramedic program, non-college degree training, from March 3, 2010 to May 30, 2011 for a total of 1120 required credit hours on full-time status. VA received notice that the Veteran's end of term or course was effective March 4, 2011, not May, which created an overpayment. The Veteran asserts that he did not complete the paramedic program until May 23, 2011, the date he earned his paramedic license, so the date of termination for his educational assistance benefits should be effective May 23, 2011. The Board notes the Veteran has not requested a waiver of overpayment of the amount at issue. See 38 U.S.C.A. § 5302 (West 2002); 38 C.F.R. §§ 1.963, 1.965 (2012). In March 2010, the Veteran was notified that he was awarded educational assistance benefits for the term at the California EMS Academy beginning on March 3, 2010 for the paramedic program. He was informed that he promptly notify the school's veterans Certifying Official if there was any change in his enrollment. He was notified that VA generally would not pay for courses he did not attend, courses from which he withdrew, courses he completed but did not count towards graduation, or changes in his active duty status. In February 2012, VA received from the California EMS Academy a Notice of Change in Student Status, via a VA Form 22-1999b. This form indicates the Veteran's end of term or course was effective March 4, 2011. "Unknown" was marked for mitigating circumstances with the following remarks: field internship was extended from 480 hours to 499 hours. Moreover, credit hours before adjustment was 1120 and credit hours after adjustment was 1147, with notation of a revised ending date of March 4, 2011. A subsequent February 2012 Audit Worksheet in the claims file confirms the lump sum payment of $20,892.80 that was made from March 3, 2010 to May 31, 2011 and the amount due of $16,804.93 from March 3, 2010 to May 3, 2011. Thus, the creation of an overpayment of $4,087.87. The Veteran has not disputed the manner in which VA calculated the amount of the debt. In a February 2012 letter, VA notified the Veteran that his records from the California EMS Academy were reviewed to show he was enrolled in the term from March 3, 2010 to May 30, 2011 and he completed the term on March 4, 2011. As noted above, the Veteran contends that the date of termination for his educational assistance benefits should be effective May 23, 2011. In a May 2012 notice of disagreement and January 2013 statement, he explained that from March 4, 2011 until May 23, 2011 he prepared for and completed two nationally mandated tests to finalize the license. Such preparation included meeting with instructors at the California EMS Academy to continue learning and studying, attending classes, completing a field internship, clinical training, and studying for the final examination. He noted previously trying to contact the California EMS Academy to get documentation stating that May 23, 2011 was his last day, but it has gone out of business nor has he received any response. He also submitted a copy of his certificate issued from the National Registry Emergency Medical Technicians certifying him as a paramedic authorized on May 23, 2011. In pertinent part, 38 C.F.R. § 21.9635(e) provides that if an eligible individual's course or period of enrollment ends, the effective date of reduction or discontinuance of the individual's award of educational assistance will be the ending date of the course or period of enrollment as certified by the institution of higher learning. In this case, the Board acknowledges the Veteran's assertions that, from March 4, 2011 to May 23, 2011, he met with instructors at the California EMS Academy, attended classes, completed a field internship and clinical training, and studied for two nationally mandated tests to finalize the license. Nevertheless, the Board finds that the February 2012 VA Form 22-1999b from the California EMS Academy's certifying official is controlling. The Veteran has not submitted evidence to indicate that the VA Form 22-1999b was sent in error, nor asserted that his term at the California EMS Academy encompassed formal training and instruction pursuant to preparation for the nationally mandated tests to finalize the paramedic license. The only support the Veteran provided for his assertions is the fact that after March 4, 2011 he studied for the tests, met with instructors at the California EMS Academy, and received a certificate from the National Registry Emergency Medical Technicians on May 23, 2011. He also did not specify where he attended classes from March 4, 2011 to May 23, 2011. The Board notes that the fact he did not continue formal training and instruction from, but rather just remained in communication with, instructors from the California EMS Academy is consistent with the VA Form 22-1999b which indicated the effective date of the Veteran's end of term or course as March 4, 2011. In this case, because the Veteran's course or period of enrollment ended, VA was obligated to terminate his educational assistance benefits effective March 4, 2011, the ending date of the course or period of enrollment as certified by the California EMS Academy in the February 2012 VA Form 22-1999b. See 38 C.F.R. § 21.9635(e). As a result of the Veteran's ineligibility for VA educational assistance benefits, an overpayment was created. Generally, an overpayment of educational assistance benefits under the Post-9/11 GI Bill constitutes a liability of that individual. See 38 U.S.C.A. § 3323; 38 C.F.R. § 21.9695. For these reasons, the Board finds that the overpayment debt in the amount of $4,087.87 was proper. Lastly, the Board notes that an individual entitled to educational assistance under Chapter 33 shall also be entitled to payment for licensing or certification tests described in 38 U.S.C.A. § 3452(b). 38 U.S.C.A. § 3315 (West 2002). If the Veteran believes that he is entitled to VA compensation for any expenses incurred from March 4, 2011 to May 23, 2011 in furtherance of his studies for the two nationally mandated tests to finalize his paramedic license, he can file a claim alleging entitlement to reimbursement for payment of educational assistance benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill), for licensing and certification tests taken on May 23, 2011. Unfortunately, that issue has not been properly developed and is not before the Board at this time. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Nonetheless, 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 duty to notify and assist 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). Indeed, this case involves benefits claimed under 38 U.S.C. Chapter 33 rather than under 38 U.S.C. Chapter 51, and as such the Board is not required to address any efforts to comply with the duties to notify and assist. Nevertheless, the Board notes that adequate notice was provided, sufficient evidence was developed in this appeal, and no further development is required. ORDER The appeal is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs