Citation Nr: 1414101 Decision Date: 04/01/14 Archive Date: 04/11/14 DOCKET NO. 13-20 634 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to Veterans Retraining Assistance Program benefits for a Pharmacy Technician program at Ulster County Community College. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Krasinski, Counsel INTRODUCTION The Appellant has unverified service from April 1975 to May 1975. This matter comes on appeal before the Board of Veterans' Appeals (Board) from decisions dated in March 2013 and May 2013 of the Department of Veterans Affairs (VA), Regional Processing Office in Buffalo, New York. In January 2014, the Appellant testified at a videoconference Board hearing before the undersigned Acting Veterans Law Judge. A transcript of that hearing is of record. In evaluating this case, the Board has not only reviewed the Appellant's physical claims file, but has also completed a search for the Appellant's file on the "Virtual VA" system to ensure a complete assessment of the evidence. FINDINGS OF FACT 1. In December 2012, VA notified the Appellant that she was eligible to receive Veterans Retraining Assistance Program benefits for full time training in the Pharmacy Technician program at Ulster County Community College. 2. From February 25, 2013 to June 6, 2013, the Appellant was not enrolled in full time training in the pharmacy Technician Program at Ulster County Community College and was enrolled in less than full time training. CONCLUSION OF LAW Entitlement to Veterans Retraining Assistance Program benefits for a Pharmacy Technician program of study at Ulster County Community College from February 2013 to June 2013 must be denied. VOW to Hire Heroes Act of 2011, title II of Public Law 112-56 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's statutory duties to assist and notify impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). There are certain instances where these duties do not apply because the issue presented is solely one of statutory interpretation and/or the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 230 (2000) (claim that a Federal statute provides for payment of interest on past-due benefits), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). This is indeed the situation in this case. The facts are not in dispute; instead, resolution of the claim is wholly dependent on interpretation of the applicable law pertaining to Veterans Retraining Assistance Program benefits. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002); see also VAOPGCPREC 5-2004 (June 23, 2004). The Veterans Retraining Assistance Program (VRAP) is a component of the VOW to Hire Heroes Act of 2011, passed by Congress, and signed into law by the President on November 21, 2011. See title II of Public Law 112-56. The VRAP directs VA, in cooperation with the Department of Labor (DOL), to pay for up to 12 months of a retraining assistance in a "high demand" occupation for unemployed eligible veterans between the ages of 35 and 60 as determined by DOL and VA. The program may enroll up to 45,000 veterans in Fiscal Year 2012, beginning July 1, 2012, and up to 54,000 veterans from October 1, 2012 through October 1, 2013, with training concluding by March 31, 2014. In order to qualify for the retraining assistance, a veteran must satisfy the following eligibility criteria: be at least 35 but no more than 60 years old, at the time of application; be unemployed on the date of application; not enrolled in any Federal or state job training program at any time during the previous 180-day period as of the application date; in receipt of an other than dishonorable discharge from the last period of service in the armed forces; not eligible for any other VA education benefit program; not in receipt of VA compensation due to Individual Unemployability; and submit an application no later than October 1, 2013. Participants must attend full-time in order to receive up to 12 months of assistance equal to the monthly full-time payment rate under the Montgomery GI Bill-Active Duty program ($1,564 effective October 1, 2012 and $1,648 effective October 1, 2013). Participants will not receive benefits for any time period during which the training drops below full-time. Participants must be enrolled in a VA approved program of education offered by a community college or technical school. The program must lead to an Associate Degree, Non-College Degree, or a Certificate, and train the Veteran for a high demand occupation. The Appellant asserts that she should be awarded VRAP benefits for the Pharmacy Technician program at Ulster County Community College from February 2013 to June 2013 because VA informed her that she was eligible for these benefits before the program began and based upon this notification, she enrolled in the program and incurred tuition fees. See the Board videoconference hearing transcript dated in January 2014. Review of the record shows that in November 2012, the Appellant requested a change in her training program and submitted a VA Form 22-1995 to VA. She indicated that she wished to enroll in a Pharmacy Technician program at Ulster County Community College. She did not indicate whether the program was a fulltime program. In December 2012, VA searched the Web Enabled Approval Management System (WEAMS) for information about the Pharmacy Technician program at Ulster County Community College. WEAMS indicated that the program was a full time course with 18 clock hours per week. In December 2012, VA notified the Appellant that she was eligible to receive VRAP benefits for full time training in the Pharmacy Technician program at Ulster County Community College. In February 2013, the Appellant submitted a certification of enrollment, VA 22-1999 to VA. She indicated that she was enrolled in the Pharmacy Technician program at Ulster County Community College and was taking 6 clock hours a week. In April 2013, VA contacted Ulster County Community College and the college informed VA that the Appellant was enrolled in the Pharmacy Technician program and was taking 2.5 clock hours per week. In a May 2013 contact, Ulster County Community College again confirmed that the Pharmacy Technician program was 2.5 clock hours per week. The evidence of record shows that from February 25, 2013 to June 6, 2013, the Appellant was not enrolled in full time training in the Pharmacy Technician Program at Ulster County Community College and was enrolled in less than full time training. Certification by an official of a college or university that attendance is full-time according to the institution's standards is sufficient to establish full-time attendance. For non-college degree programs (technical, trade, or vocational schools), the student must be attending full-time by the school's standards. Normally, 20 clock hours of attendance per week establishes full-time attendance for non-college degree programs. See M21-1MR, Part ix, Subpart I, Chapter 6 (C) (22)(e). The evidence shows that the Appellant was enrolled in less than full time in the Pharmacy Technician program and she was enrolled in 2.5 clock hours per week. The Board finds that the Appellant's claim for VRAP benefits must be denied. The Appellant was pursuing a program of study that was less than full time. VRAP benefits are authorized under the VOW to Hire Heroes Act of 2011 for certain education programs and are authorized only for full time programs. VRAP participants must be enrolled in a VA approved program of education offered by a community college or technical school and the program must be a full time program. The Appellant's program of study at Ulster County Community College does not meet the full time program requirements for VRAP. There is no basis in law or fact whereby the Veteran may be granted VRAP benefits for the Pharmacy Technician program of study at Ulster County Community College. 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 VRAP benefits for the Pharmacy Technician program of study at Ulster County Community College must be denied. Although the Board empathizes with the Appellant and is sympathetic to her situation, there simply is no legal basis to find her eligible for VRAP benefits for the Pharmacy Technician program of study at Ulster County Community College. The Board is bound by the law, and its decision is dictated by the controlling statutes and regulations. The Board is without authority to grant benefits simply because it might perceive the result to be equitable. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). ORDER Entitlement to VRAP benefits for the Pharmacy Technician program of study at Ulster County Community College is denied. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs