Citation Nr: 1331009 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 10-47 037A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to educational assistance benefits under Chapter 33 (Post-9/11 GI Bill) for a non-college degree program. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from June 2005 to June 2006. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from an administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction has since transferred to the Des Moines, Iowa, RO. An attorney has submitted several statements in support of the Veteran's claim, as well as appeared with the Veteran at his hearing in June 2011, however, the Board notified the attorney and the Veteran in June 2012 that representation was not recognized, because the attorney was not accredited to represent veterans before VA. The Veteran, therefore, is unrepresented with regard to this claim. FINDINGS OF FACT The Veteran enrolled in a non-college degree program from January 4, 2010, to August 7, 2010. CONCLUSION OF LAW The Veteran has no legal entitlement to educational benefits under Chapter 33 (Post-9/11 GI Bill) for a non-college degree program. 38 U.S.C.A. §§ 3301 - 3324 (West 2002); 38 C.F.R. §§ 21.9505, 21.9590 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA must assist a claimant at the time that he or she files a claim for benefits. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002), 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In the present case, the Board acknowledges no notification letter was sent to the Veteran. However, education claims have their own regulatory notice and assistance duties. See 38 C.F.R. §§ 21.1031(b), 38 C.F.R. § 21.1032 (2013). There is no indication in VA's general duty to notify and assist provisions that Congress intended to revise the unique, specific claim provisions of 38 C.F.R. § 21.1031. Barger v. Principi, 16 Vet. App. 132 (2002). The Veteran was sufficiently advised in the January 2010 letter related to his Post-9/11 GI Bill Eligibility, the June 2010 letter advising him that his education program did not qualify for benefits, the July 2010 letter advising him of the award of benefits under the Reserve Educational Assistance Program (REAP) and the Montgomery GI Bill for the Selected Reserve (MGIB-SR), and the subsequent August 2010 statement of the case. The Board adds that the Veteran has been accorded appropriate due process. The Veteran has presented argument in his July 2010 notice of disagreement, July 2010 VA Form 9, and at his June 2011 Board videoconference hearing. He has also demonstrated sufficient knowledge as to the legal reasons his claim was denied. Also, as in the present case, the provisions of VA's duty to notify and assist statutes and regulations have no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter. 38 C.F.R. §§ 21.1031(b), 38 C.F.R. § 21.1032; Manning v. Principi, 16 Vet. App. 534, 542 (2002). Therefore, the Board finds that no further action is necessary under the statutory and regulatory duties to notify and assist. The Post-9/11 GI Bill is established for individuals who served on active duty after September 10, 2001, effective August 1, 2009. 38 C.F.R. § 21.9500 (2013). Basic eligibility is established under 38 U.S.C.A. Chapter 33 (West 2002) and under 38 C.F.R. § 21.9520 (2013). Payments of educational assistance are based on pursuit of a program of education. 38 C.F.R. § 21.9590(a). Subject to paragraph (a), VA will approve a program of education under 38 U.S.C.A. Chapter 33 selected by the individual if the program meets the definition of a program of education in 38 C.F.R. § 21.9505. See 38 C.F.R. § 21.9590(b)(1). Program of education means a curriculum or combination of courses pursued at an institution of higher learning that are accepted as necessary to meet the requirements for a predetermined and identified educational, professional, or vocational objective. The curriculum or combination of courses pursued must be listed in the institution of higher learning's catalog and included in the approval notice provided by the State approving agency to VA. 38 C.F.R. § 21.4258(b)(iv) (2013). Institution of higher learning means a college, university, or similar institution, including a technical or business school, offering postsecondary level academic instruction that leads to an associate or higher degree if the school is empowered by the appropriate State education authority under State law to grant an associate or higher degree. See 38 C.F.R. § 21.9505. In January 2010, the Veteran was notified of his eligibility for benefits for an approved program of eduction or training under the Post-9/11 GI Bill. In May 2010, the Veteran submitted a VA Form 22-1999 (VA Enrollment Certification). On this form, he indicated that he was in a paramedic training program, which he identified as a non-college degree program, between January 4, 2010, and August 7, 2010. The school name was identified as "EMSCRC, University of Iowa Hospitals." In June 2010, the Veteran was notified that although he is eligible for the Post-9/11 GI Bill, benefits would not be paid for paramedic training at the University of Iowa Hospitals/Clinics EMC Learning Resource Center. A letter to the Veteran the following month notified him that benefits were paid under REAP from January 4, 2010, through June 9, 2010, the date prior to his separation from service in the Reserves. This letter also notified him that benefits were paid under MGIB-SR for the period of June 10, 2010, through August 7, 2010. These benefits were paid for tuition for the entire duration claimed by the Veteran. However, the Veteran filed a notice of disagreement with the decision to deny him benefits under Post-9/11 GI Bill, because he contends that he is entitled to the housing allowance under that program, which is not available under REAP or MGIB-SR. Thus, the question in this case is whether the Veteran's education program is eligible for benefits under Post-9/11 GI Bill, such that his tuition benefit can be paid under that program, as well as a housing allowance. As outlined in the August 2010 SOC, the Veteran was not eligible for payment for the paramedic training at the University of Iowa Hospital EMS Learning Resource Center because it is a non-college degree program offered at an institution other than a college or university. In other words, the claim was denied because the institution he attended does not qualify as an institute of higher learning. A printout within the claims file from VA's Web Enhanced Approval Management System (WEAMS) reflects that the University of Iowa Hospital and Clinics is an institute of higher learning for some approved programs (Anesthesia, Cardiology Fellowship, Child Psychology, Dermatology, Diagnostic Radiology, Family Practice, Hospital Dentistry/General, Internal Medicine, Medicine-Psychiatry, Neurology, Neurosurgery, Nuclear Medicine, Obstetrics & Gynecology, Occupational Medicine, Ophthalmology, Oral & Maxillofacial Surgery, Orthopaedic Surgery, Otolaryngology/Head-Neck Surgery, Pathology, Pediatrics, Psychiatry, Radiation Oncology, Surgery, and Urology). However, a separate WEAMS printout applies to the University of Iowa Hosp/Clinic EMS Learning Resource Center, which specifically includes the ADVCD EMT/Paramedic program, the EMT Ambulance EMT-B program, and the Paramedic Specialist Training program, and shows that these programs at this aspect of the University of Iowa Hospitals are non-college degree programs and not approved for VA benefits. Thus, the institution the Veteran attended is listed in the WEAMS database as a non-college degree school. Non-college degree schools do not qualify for Chapter 33 benefits. As the Veteran attended a program at an institution determined by VA's WEAMS database as a non-college degree school, the Board concludes that the RO was correct in determining that the Veteran is not entitled to benefits under Chapter 33. See 38 C.F.R. §§ 21.9590(a); 21.9505. The the Veteran testified at his hearing that he chose this program because it was his understanding that he would receive benefits from VA for participation. Nonetheless, VA is bound by the applicable law and regulations as written. 38 U.S.C.A. § 7104(c) (West 2002). Neither the RO nor the Board is free to disregard laws and regulations enacted for the administration of VA educational programs. The eligibility requirements for educational assistance are prescribed by Congress and regulations enacted by the Armed Forces and VA. It has been observed that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 433 (1992). The law in this case, therefore, and not the evidence, is dispositive of the appeal. Sabonis v. Brown, 6 Vet. App. 426 (1994). As such, entitlement to educational assistance benefits under Chapter 33 for a non-college degree program, is not established. Accordingly, the claim must be denied. The Board notes that the findings in this decision do not impact the Veteran's award of tuition benefits under either MGIB-SR or REAP. ORDER Entitlement to educational assistance benefits under Chapter 33 (Post-9/11 GI Bill) for a non-college degree program is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs