Citation Nr: 1511761 Decision Date: 03/19/15 Archive Date: 04/01/15 DOCKET NO. 13-06 945 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether the denial of Veteran's Retraining Assistance Program (VRAP) benefits for the term August 20, 2012, through December 16, 2012, was correct. ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran performed active military service from May 1974 to May 1977. This matter arises to the Board of Veterans' Appeals (Board) from a rating action dated in October 2012 by the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma. FINDING OF FACT From August 20, 2012, to December 16, 2012, the Veteran was not enrolled full-time. CONCLUSION OF LAW The criteria are not met for VA educational assistance benefits under VRAP, from August 20, 2012, through December 16, 2012. Pub. L. No. 112-56, § 211 (Nov. 21, 2011). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA's statutory duties to notify and assist impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). 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). II. VRAP The VRAP was established by Pub. L. 112-56, Title II, § 211. The pertinent sections are as follows: (a) Program authorized.-- (1) In general.--Not later than July 1, 2012, the Secretary of Veterans Affairs shall, in collaboration with the Secretary of Labor, establish and commence a program of retraining assistance for eligible veterans. (2) Number of eligible veterans.--The number of unique eligible veterans who participate in the program established under paragraph (1) may not exceed-- (A) 45,000 during fiscal year 2012; and (B) 54,000 during the period beginning October 1, 2012, and ending March 31, 2014. (b) Retraining assistance.--Except as provided by subsection (k) [establishing the VRAP program's termination date as March 31, 2014], each veteran who participates in the program established under subsection (a)(1) shall be entitled to up to 12 months of retraining assistance provided by the Secretary of Veterans Affairs. Such retraining assistance may only be used by the veteran to pursue a program of education (as such term is defined in section 3452(b) of title 38, United States Code) for training, on a full-time basis, that- (1) is approved under chapter 36 of such title [38 U.S.C.A. § 3670 et seq.]; (2) is offered by a community college or technical school; (3) leads to an associate degree or a certificate (or other similar evidence of the completion of the program of education or training); (4) is designed to provide training for a high-demand occupation, as determined by the Commissioner of Labor Statistics; and (5) begins on or after July 1, 2012. (e) Eligibility.-- (1) In general.--For purposes of this section, an eligible veteran is a veteran who-- (A) as of the date of the submittal of the application for assistance under this section, is at least 35 years of age but not more than 60 years of age; (B) was last discharged from active duty service in the Armed Forces under conditions other than dishonorable; (C) as of the date of the submittal of the application for assistance under this section, is unemployed; (D) as of the date of the submittal of the application for assistance under this section, is not eligible to receive educational assistance under chapter 30, 31, 32, 33, or 35 of title 38, United States Code [38 U.S.C.A. § 3001 et seq., 3100 et seq., 3201 et seq., 3301 et seq., or 3500 et seq., respectively], or chapter 1606 or 1607 of title 10, United States Code [10 U.S.C.A. § 16131 et seq. or 16161 et seq., respectively]; (E) is not in receipt of compensation for a service-connected disability rated totally disabling by reason of unemployability; (F) was not and is not enrolled in any Federal or State job training program at any time during the 180-day period ending on the date of the submittal of the application for assistance under this section; and (G) by not later than October 1, 2013, submits to the Secretary of Labor an application for assistance under this section containing such information and assurances as that Secretary may require. (2) Determination of eligibility.-- (A) Determination by Secretary of Labor.-- (i) In general.--For each application for assistance under this section received by the Secretary of Labor from an applicant, the Secretary of Labor shall determine whether the applicant is eligible for such assistance under subparagraphs (A), (C), (F), and (G) of paragraph (1). (ii) Referral to Secretary of Veterans Affairs.--If the Secretary of Labor determines under clause (i) that an applicant is eligible for assistance under this section, the Secretary of Labor shall forward the application of such applicant to the Secretary of Veterans Affairs in accordance with the terms of the agreement required by subsection (h). (B) Determination by Secretary of Veterans Affairs.--For each application relating to an applicant received by the Secretary of Veterans Affairs under subparagraph (A)(ii), the Secretary of Veterans Affairs shall determine under subparagraphs (B), (D), and (E) of paragraph (1) whether such applicant is eligible for assistance under this section. If shop practice is an integral part of a trade or technical couse not leading to a standard college degree, 22 clock hours per week (exclusive of supervised study) with not more than 2 and a half hours rest is full-time enrollment. 38 C.F.R. § 21.4270(a)(1)(i)(A). If theory and class instruction constitutes more than 50 percent of the required hours in a trade or technical course not leading to a standard college degree, a full-time enrollment is 18 clock hours net instruction per week (exclusive of supervised study). 38 C.F.R. § 21.4270(a)(1)(ii)(A). Non-college degree courses offered by insitutions of higher learning are measured in the same manner as collegiate under-graduate courses are measured. 38 C.F.R. § 21.4270(b). Full time collegiate under-graduate is defined as 14 semester hours or equivalent. Full time collegiate graduate is defined as 14 semester hours or equivalent or, as certified by a responsible official of the school. 38 C.F.R. § 21.4270. The Veteran enrolled in the Geographic Information Systems (GIS) program at Tulsa Community College from August 20, 2012, to December 16, 2012. The Veteran's advisor reports that the program can be completed in one year but at a pace that appears to be under full time on paper. The advisor reported that "[i]n reality the work required for each of these classes occupies that of a full course load as I have witnessed more than a few students participate in said program." An assistant professor of geography reported that the GIS program consisted of five courses that are to be taken in a pre-determined sequence, and, as a result, have prerequisites which do not allow students to enroll in more than 8 hours (a maximum of two courses) during the first and second semester of the program. Therefore, the Veteran was enrolled in the maximum number of credit hours and course that was possible for the program. The professor stated that "[i]n the context of the GIS Program, therefore, he is a full-time enrolled student." VA has indicated that as of August 2009 the program of Geographical Information Systems is a college non-degree program wherein full time enrollment is defined as 12 credit hours. A report of contact with the Veteran's advisor revealed that the advisor reported that the Veteran was enrolled at half time for the August 2012 to December 2012 term at hours. The advisor noted that the Veteran's program required additional lab work, that was not reportable, on-line and that a student may spend entire days working on the course. The Veteran was confirmed to have worked on his Certificate all day, every day, the entirety of the term. The advisor stated that the program requires courses to be taken in succession; therefore, even though the student could take additional classes, classes relating to his degree must be taken after the previous classes are completed. Therefore, the student is contained to a smaller amount of classes each term. It is undisputed that the Veteran was enrolled for 8 credit hours from August 20, 2012, to December 16, 2012. It is also undisputed that the GIS course of instruction that the Veteran was enrolled in required specific prerequisites that limited enrollment to 8 credit hours. However, the VRAP program requires "full-time" enrollment. Pursuant to 38 C.F.R. § 21.4270, full-time enrollment is no less than 14 clock hours and the agency of original jurisdiction determined that 12 clock hours was the minimum for full-time enrollment. As such, the Veteran was not taking sufficient clock hours to meet the requirement for full-time enrollment. Therefore, the claim is denied. While sympathetic to the Veteran's arguments, the Board is also without legal authority to grant entitlement to VRAP benefits from August 20, 2012, to December 16, 2012, on an equitable basis. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). ORDER Veteran's Retraining Assistance Program (VRAP) benefits for the term August 20, 2012, through December 16, 2012, are denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs