Citation Nr: 1605655 Decision Date: 02/12/16 Archive Date: 02/18/16 DOCKET NO. 14-21 519 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to Post-9/11 GI Bill (Chapter 33) education benefits for flight training beyond the academic year that ended July 31, 2013. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from July 1985 to July 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2014 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. Jurisdiction over the Veteran's claim was subsequently transferred to the Boston, Massachusetts RO. In April 2015, the Veteran testified at a Board videoconference hearing before the undersigned; a transcript of that hearing is of record. FINDING OF FACT The Veteran's eligibility for Post-9/11 GI Bill (Chapter 33) education benefits for flight training is not limited to the academic year ending July 31, 2013. CONCLUSION OF LAW The Veteran is entitled to an award of Chapter 33 education benefits under the Post-9/11 GI Bill for his program of commercial flight training for academic years that began after his initial academic year of flight training ended July 31, 2013. Pub. L. No. 111-377, 124 Stat. 4106 (2011); 38 U.S.C.A. § 3313(g) (West 2015). REASONS AND BASES FOR FINDING AND CONCLUSION This case involves the provisions of Chapter 33, Title 38, of the United States Code which were established by the Post-9/11 Veterans Educational Assistance Act of 2008. See Title V of the Supplemental Appropriations Act of 2008, Pub.L. 110-252 which became law on June 30, 2008. The Appropriations Act amended Part III of Title 38, United States Code to include a new Chapter 33, known as the Post-9/11 GI Bill, which represented a new program of education benefits designed for veterans who served on active duty after September 11, 2001. The original Post-9/11 GI Bill's provisions went into effect on August 1, 2009; changes to the law have been put into place since that time. The provisions of the Post-9/11 GI Bill 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). Effective October 1, 2011, the available Chapter 33 education benefits were expanded to include commercial flight training. In October 2011, the appellant applied for VA education benefits under the Post 9/11 GI Bill, and basic entitlement to education benefits under Chapter 33 was established. He was informed of his eligibility in a November 2011 letter, after which he did not enroll in the program initially sought. He then filed for VA education benefits for a pilot instrument rating program at the Hanscom Air Force Base Aero Club and was notified in July 2012 of his eligibility. The basic entitlement allowed him to receive 100 percent of the benefits payable based on his length of creditable active duty status. Certification of the Veteran's attendance at flight training was received by VA in August 2012, after which the RO notified the Veteran that his program was approved by way of a September 2012 letter. In an October 2012 letter, the RO notified the Veteran that a $752.20 payment was made, leaving "$9,577.80 remaining out of [his] annual Flight training allowance for the remainder of the academic year beginning August 1, 2012 and ending July 31, 2013." A note within this letter refers to the "Annual Flight Training cap amount." Similar letters were received over the course of the year as payments were made showing decreasing remaining amounts available in the "annual Flight training allowance" and continuing to refer to this as the "Annual Flight Training cap." See letters dated in March 2013, April 2013, June 2013, July 2013, September 2013 and January 2014. The January 2014 letter notified the Veteran that $10,329.10 had been paid and as of January 30, 2014, there was "0.00 remaining out of your annual Flight training allowance for the academic year beginning August 1, 2012 and ending July 31, 2013." The Veteran then submitted certification of flight training for March and April 2014. In an April 2014 letter, the RO denied the claim and notified the Veteran that his "flight cap was reached in September 2013 for [his] Commercial/Instrument program." In a follow up letter in April 2014, the RO notified the Veteran that "the maximum amount payable for any one flight training program has been capped to a one-time amount per flight program." The RO further stated that no additional payments would be made "regardless of whether the program spans multiple 'academic years.'" The Veteran has perfected an appeal as to this determination. In his April 2014 notice of disagreement, the Veteran reported that the VA website led him to believe the amount is capped at $10,330 per academic year, thus leading him to believe the amount would be reset as of August 1, the start of the next academic year. The Veteran argues that because he is entitled to 100 percent of the Post-9/11 GI Bill benefit, which includes 36 months of benefits, he would be able to use his entire benefit to complete his flight training program. In the May 2014 Statement of the Case (SOC), the RO cited to Pub. L. No. 111-377, 124 Stat. 4106 (2011) in support of its decision to deny the payment of education benefits to the Veteran for his flight training program past July 31, 2013. The Board notes that the law was codified at 38 U.S.C.A. § 3313 (West 2002 & Supp. 2012); however, amendments to the regulations have yet to be promulgated. Under 38 U.S.C.A. § 3313(g)(C), a student is entitled to a payment that is either in-state tuition (reduced by certain factors) or the amount equal to one of two choices: either $10,000 for the academic year beginning August 1, 2011, or a slightly higher amount for each succeeding academic year. Furthermore, the language in this statute relating to veterans pursuing a certificate or other non-college degree and veterans pursuing a program of education that is pursued exclusively by correspondence is similar to the language for veterans in flight training in assigning a specific dollar amount for the academic year beginning on August 1, 2011, and higher amounts for subsequent academic years. 38 U.S.C.A. § 3313(g). There is nothing to indicate that veterans in certificate programs and correspondence programs are entitled to more years of study than veterans in flight school programs. The Board also notes that the VA website relating to education benefits discusses flight training. See http://www.benefits.va.gov/gibill/flight_training.asp (last checked January 28, 2016). The website currently states that the payment amount varies depending on the GI Bill program and the flight school. Payment amounts under the Post-9/11 GI Bill are described as varying based on which type of flight training course and the kind of school in which a veteran is enrolled. For a vocational flight training program, a veteran can be reimbursed the lesser of these two costs in effect the day the veteran began training in the flight course: 1. Full cost of training; 2. Annual maximum amount of training (see annual maximum amount). The website further states that the maximum amount available for reimbursement depends on the academic year the veteran begins training. In the example given on the website, a veteran enrolled in a dual-engine certification course that cost $15,000 on November 1, 2012. That veteran could receive a maximum of $10,330 for that course and any other flight training programs leading to dual-engine certification or other certification that began before August 1, 2013. Additional flight training courses that began on or after August 1, 2013, would be subject to a new annual limit. It is clear from the record that the Veteran received notice several times throughout the year that his benefits included a cap, which was referred to in each letter as an "Annual Flight Training cap." Each letter kept track of the amounts paid toward a $10,300 cap for a single education year. There is no indication in these letters, or in any communication to the Veteran prior to the April 2014 decision on appeal, that this is a program cap not to be reset following the first program year "regardless of whether the program spans multiple 'academic years.'" Furthermore, despite VA's interpretation, the Board looks directly at the language of the relevant statute in resolving this issue. On review, the Board finds that the language of the statute does not limit payment of education benefits to a veteran or service member engaged in flight training to one academic year. Rather, the statute states that a different maximum rate will be paid for each different academic year as indicated by VA in its website. What is clear is that the statute does not contain any language of the cap applying to an entire flight program which may span across different years. However, even if, assuming arguendo that the language of the statute is ambiguous regarding whether the appellant is entitled to payment of education benefits for flight school for only one year or for more than one year, in resolving this conflict, the Board turns to the guidance of the United States Supreme Court that, in the face of statutory ambiguity, ruled that "interpretative doubt is to be resolved in the veteran's favor." Brown v. Gardner, 513 U.S. 115, 118 (1994); see also Smith (William) v. Brown, 35 F.3d 1516, 1523 (Fed. Cir. 1994) (the canons of statutory construction apply to regulations as well as statutes). Thus, throughout the program, the RO referred to the cap in communication to the Veteran as annual in nature; the VA website gave an example clearly stating the cap as annual in nature to be reset at the beginning of the next academic year; and the pertinent regulation does not set any cap limiting the flight program benefits to a single year. Therefore, payment of education benefits for the Veteran's flight program is not limited to the single academic year that ended July 31, 2013. He is entitled to payment of educational benefits for his program of flight training for subsequent academic years at the eligible 100 percent rate (maximum allowable). ORDER Entitlement to an award of Chapter 33 education benefits under the Post-9/11 GI Bill for the Veteran's program of flight training beyond the academic year that ended July 31, 2013, up to 100 percent - the maximum amount allowable - for the particular academic year, is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs