Citation Nr: 1338686	
Decision Date: 11/25/13    Archive Date: 12/06/13

DOCKET NO.  10-35 590	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois



THE ISSUE

Entitlement to educational assistance benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill), for courses taken at Success Schools LLC.



WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

J. Connolly, Counsel




INTRODUCTION

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.  In December 2010, the  Veteran testified at a hearing before the undersigned via video conference from the RO.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.


REMAND

The Post 9/11 Veterans Educational Assistance Act of 2008 represented a new program of education benefits designed for veterans who served on active duty after September 11, 2001.  The provisions of the Act were codified at 38 U.S.C.A. §§ 3301-3324 (West Supp. 2009) with the implementing regulations found at 38 C.F.R. §§ 21.9500-21.9770 (2009). 

In January 2010, the RO approved the Veteran's claim for Chapter 33 benefits, but informed him that they could not be paid for courses taken for studying barbering at Success Barber School.  The basis for the denial was that approved programs of education for Chapter 33 purposes must be taken at an institute for higher learning (IHL) and that programs that are not within an IHL or a non-college degreed (NCD) school do not qualify.  

However, a review of the pertinent law and regulations is inconsistent with the basis of the denial.  Specifically, the Veteran is eligible for Chapter 33 benefits for approved programs of education.  A program of education is an approved program of education for Chapter 33 if the program is approved for purposes of Chapter 30 (including approval by the State approving agency (SAA) concerned).  38 U.S.C.A. § 3313(b).  Generally, VA will approve, and will authorize payment of educational assistance, for the individual's enrollment in any course or subject which a SAA has approved as provided in section 21.7220 and which forms a part of a program of education as defined in section 21.7020(b)(23).  Restrictions on this general rule are stated in section 21.7222(b).  38 U.S.C.A. §§ 3002(3), 3452; 38 C.F.R. § 21.7120.  A program of education is any unit course or subject or combination of courses or subjects which is pursued at an educational institution.  38 C.F.R. § 21.7020(b)(23).  However, VA will not pay educational assistance for an enrollment in any course that has not been approved by an SAA or by VA when that agency acts as an SAA.  38 U.S.C.A. §§ 3034, 3672; 38 C.F.R. §§ 21.7122(a), 21.7220.  

In other words, the law requires specific State or VA course approval for Chapter 30 benefits and in turn Chapter 33 benefits.  

Further, under 38 U.S.C.A. § 3313, it is provided that educational assistance is payable for pursuit of an approved program of education other than a program of education leading to a degree at an institute other than an institute of higher learning when certain criteria are met.  38 U.S.C.A. § 3313(g).  

The Board notes that a search of VA's Web Enhanced Approval Management System (WEAMS) reflected that the Success School LLC in Indiana is an approved institution in general (but not as an IHL).  

Therefore, it appears that the matter to be resolved is whether the Veteran pursued "approved courses" that had SAA or VA approval and then whether the criteria of 38 U.S.C.A. § 3313(g) are met if he did.  

Accordingly, the case is REMANDED for the following action:

Determine if the courses pursued by the Veteran are "approved courses" with SAA or VA approval.  If so, determine if the criteria of 38 U.S.C.A. § 3313(g) are met.  Then readjudicate the claim on appeal in light of all of the evidence of record.  If the issue remains denied, the Veteran should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



_________________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2012).