Citation Nr: 1614204 Decision Date: 04/07/16 Archive Date: 04/25/16 DOCKET NO. 15-17 196 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUE Entitlement to an earlier effective date prior to January 1, 2013 for the award of educational assistance benefits for on-the-job training at [redacted] under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill). WITNESSES AT HEARING ON APPEAL Appellant and R.A. ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from May 1987 to December 2007. This case comes to the Board of Veterans' Appeals (Board) on appeal from a May 2014 decision by the RO in St. Louis, Missouri that awarded entitlement to Chapter 33 educational benefits, effective January 1, 2013, for a program of on-the-job training at [redacted]. The Veteran was notified of this decision by a letter dated on May 1, 2014. A timely notice of disagreement was received from him in which he appealed for an earlier effective date. A statement of the case was issued in June 2014. A substantive appeal was received from the Veteran on May 5, 2015, which is more than one year after the date of mailing the notice of the May 2014 decision, and, thus, it is untimely. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.302(b). However, the Veteran had previously filed a request for extension of time for filing his substantive appeal (see 38 C.F.R. § 20.303), and in an October 2014 letter, the Agency of Original Jurisdiction (AOJ) notified him that he had until May 15, 2015 to perfect his appeal. Moreover, this issue was included in the RO's May 2015 VA Form 8, Certification of Appeal. Thus, this issue is in appellate status. See Percy v. Shinseki, 23 Vet. App. 37 (2009) (holding that VA waived objection to untimeliness of a substantive appeal by taking actions which led the Veteran to believe that an appeal had been perfected). A personal hearing was held in November 2015 before the undersigned Veterans Law Judge (VLJ) of the Board, and a transcript of this hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran participated in an on-the-job training program ([redacted]) at [redacted] from June 20, 2011 to March 15, 2013. 2. [redacted] did not receive approval from the State approving agency (SAA) for the [redacted] until March 3, 2014, after the Veteran had completed his on-the-job training program at this facility. The SAA indicated that the effective date of the approval was January 1, 2013. 3. VA did not receive the approval notice for the course until April 11, 2014. 4. In May 2014, VA awarded the Veteran education benefits at the 100 percent rate under the Post-9/11 GI Bill for the enrollment in the on-the-job training program at the [redacted]t, effective January 1, 2013, the date that the State of Ohio Department of Veterans Services (the state approving agency) approved his educational program. CONCLUSION OF LAW The criteria for an earlier effective date prior to January 1, 2013 for educational assistance for an on-the-job training program at [redacted] are not met. 38 U.S.C.A. §§ 3301, 3311, 3313, 3677 (West 2014); 38 C.F.R. §§ 21.1029, 21.9520, 21.9625 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist The Veteran's Claims Assistance Act (VCAA), and its implementing regulations, address VA's duties to notify a Veteran of information and evidence necessary to substantiate a claim for VA benefits, and to assist a Veteran in obtaining such evidence. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. § 3.102, 3.156, 3.159, 3.326 (2015). The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notification procedures do not apply in cases where the applicable chapter of Title 38, United States Code contains its own notice provisions. See Barger v. Principi, 16 Vet. App. 132, 138 (2002) (VCAA notice was not required in case involving a waiver request). In the present case, specific VCAA notice was not required because the applicable regulatory notification procedure was contained in 38 C.F.R. § 21.1031 for educational benefit claims, not the VCAA. Under 38 C.F.R. § 21.1031(b) "if a formal claim for educational assistance is incomplete, or if VA requires additional information or evidence to adjudicate the claim, VA will notify the claimant of the evidence and/or information necessary to complete or adjudicate the claim and the time limit provisions of § 21.1032(d)." In this case, the record does not reflect the Veteran's formal claim for educational assistance was incomplete. Rather, the dispute is whether he is legally entitled to receive such benefits prior to January 2013. The Board further notes that, as detailed below, the Veteran has no legal entitlement to the benefits he is seeking on appeal. The provisions of the VCAA have no effect on an appeal, as in the case here, where the law, and not the underlying facts or development of the facts, is dispositive of the matter. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002); see also Smith v. Gober, 14 Vet. App. 227, 230 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOGCPREC 5-2004 (June 23, 2004). In fact, the applicable notification and assistance procedures for educational assistance claims under 38 C.F.R. § 21.1031(b) and § 21.1032(d) emphasize that VA has no further duty to notify or assist the claimant when the undisputed facts render the claimant ineligible for the claimed benefit under the law, as is the case here. Therefore, the Board finds that no further action is necessary under the statutory and regulatory duties to notify and assist. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice or lack thereof. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The Board adds that general due process considerations have been satisfied. See 38 C.F.R. § 3.103. The Veteran has been provided ample opportunity to present evidence and argument in support of his claim, and he has in fact done so to include extensive written argument, evidence, and testimony. The Board also notes that it is cognizant of the ruling in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. § 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. However, as discussed above, to the extent possible, VA has obtained the relevant evidence and information needed to adjudicate this appeal. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the November 2015 Board hearing. Analysis VA regulations provide, generally, that an individual may establish eligibility for Chapter 33 educational assistance based on active duty service after September 10, 2001, if he or she serves a minimum of 90 aggregate days and is separated from active service with an honorable discharge. Initially, the Board notes that there is no dispute that the Veteran satisfied the eligibility requirements for Chapter 33 (Post-9/11 GI Bill) education benefits as he has already been deemed eligible for such benefits. The issue in this case is whether he is entitled to such benefits for an on-the-job training program at [redacted] during the period from June 20, 2011 to January 1, 2013. A completed VA Form 22-1990 was received from the Veteran in May 2011 in which he requested approval of a [redacted] of apprenticeship or on-the-job training at a commercial [redacted], [redacted]. He stated that the program was a 20-month training course that would begin on June 20, 2011. In early June 2011, VA notified the Veteran that he was eligible for Chapter 33 benefits, but that his claim for educational benefits for the [redacted] was denied because the [redacted] facility had not been approved for the post-9/11 GI Bill program. He was advised that if the school official had not yet applied for approval, he or she should apply for approval from the Ohio State Approving Agency. The record reflects that the Veteran then participated in an on-the-job training program ([redacted]) at [redacted] from June 20, 2011 to March 15, 2013. In general, an "other training on-the-job'' course is any training on the job that does not qualify as an "apprentice course" (defined in 38 C.F.R. § 21.4261). See 38 C.F.R. § 21.4262. Further, the training establishment and its courses must meet certain criteria, including the requirement that the job which is the objective of the training is one in which progression and appointment to the next higher classification are based upon skills learned through organized and supervised training on-the-job and not on such factors as length of service and normal turnover. 38 C.F.R. § 21.4262(c)(1). Also, approval will not be granted for training in occupations that require a relatively short period of experience for a trainee to obtain and hold employment at the market wage in the occupation. Additionally, the job must customarily require a period of training of not less than 6 months and not more than 2 years of full-time training. 38 C.F.R. § 21.4262(c)(3). The appropriate State approving agency may approve the application when the training establishment and its courses are found upon investigation to have met the criteria outlined in this paragraph. 38 C.F.R. § 21.4262(c). A SAA-1 Employer Application to the State Approving Agency (SAA) dated on March 3, 2014 reflects that [redacted] applied for approval of a Licensed [redacted], with relevant supporting documentation. A SAA-1 Letter of Transmittal dated on March 10, 2014 reflects that approval was granted by the Ohio SAA to [redacted] for two new OJT programs ([redacted]) as "Other Training On-the-Job Courses" under the authority of 38 C.F.R. § 21.4262. The SAA noted that these two new OJT programs were added effective January 1, 2013, and that the completed approval package was received by the SAA on March 3, 2014. The effective date of approval was listed as January 1, 2013. This document is signed by the Educational Consultant of the State Approving Agency for Veterans' Training, and the Administrator of the State Approving Agency for Veterans' Training. By a letter to VA dated on April 2, 2014, R.J.O., of [redacted], said that he had assumed the duties of the certifying and authorizing official for the[redacted] at his plant. He said that several factors in his predecessor's tenure had resulted in a delay of the submission of the enclosed documents to VA. He requested that the Veteran's enrollment in the program from June 2011 to March 2013 be approved. He enclosed a SAA-2 (Veteran Training Agreement Application for On-the-Job Training) that he and the Veteran signed on April 3, 2014. These documents were received at the RO on April 11, 2014. In early May 2014, VA awarded the Veteran education benefits at the 100 percent rate under the Post-9/11 GI Bill for the enrollment in the OJT program at the [redacted], effective January 1, 2013, the date that the state of Ohio (the State approving agency) approved his educational program. The Veteran contends that an earlier effective date should be granted for his award of educational benefits. He essentially asserts that he undertook extensive efforts to obtain the necessary approval of his on-the-job program from the State of Ohio, and that he should not be penalized because the State of Ohio did not approve the program earlier. He also contends that another Veteran, L.V., participated in the same program at the same facility, at the same time as he did, and that VA mistakenly awarded that other Veteran educational benefits for the entire period of the program. He contends that it is iniquitous that the two Veterans were treated differently. See his correspondence and hearing testimony. The Veteran's education folder contains extensive correspondence between the Veteran and the State of Ohio, reflecting that the Veteran was unhappy with the performance of the Ohio Department of Veterans Services during the lengthy period during which he and his employer, [redacted], attempted to obtain approval for his on-the-job training program from June 2011 to March 2013. In an October 2014 letter responding to the Veteran's inquiries, the director of the Ohio Department of Veterans Services informed him that the "effective date" of an OJT program is established when all approval documentation is received from the school, and that in his case, the SAA promptly processed the approval once all necessary information was obtained from the institution. The Veteran submitted an April 2015 memorandum from another Veteran, L.V., who stated that he attended the same program with the Veteran at [redacted] from June 2011 to March 2013, and that he did receive benefits for the entire training period, but the Veteran did not. At his November 2015 Board hearing, the Veteran testified that he was previously unaware of the governing VA regulations regarding effective dates. He believed that the SRO course would be approved as an on-the-job training course, and contacted many people in order to obtain such approval, but there were delays by the certifying officials that were not his fault. He said that other similarly situated Veterans had received these benefits for attending the same on-the-job training, including at the [redacted] where he trained. He essentially asserted that the Ohio Department of Veterans Services failed to assist him in this process, provided incorrect information to him and the school certifying officer, and failed to certify the training program in a timely manner. He also contended that if he had pursued the SRO training at other nuclear plants, including in Ohio, he would have received full benefits. He testified that the Ohio State approving agency violated procedures, and was obstructionist and negligent in taking two years and 10 months to certify the [redacted] [redacted] on-the-job training program. After a review of all of the evidence of record, the Board finds that the record reflects that [redacted] did not receive approval from the State approving agency (SAA) until March 3, 2014, after the Veteran had completed his on-the-job training programs at this facility, and that the SAA assigned an effective date of January 1, 2013 for this approval. VA cannot provide educational assistance for on-the-job training programs that are conducted by training establishments that are not approved by the pertinent State approving authority. See 38 C.F.R. §§ 21.4250, 21.4261, 21.4262. Governing regulation provides that VA will determine the beginning date of an award or increased award of educational assistance under this section, but in no case will the beginning date be earlier than August 1, 2009. 38 C.F.R. § 21.9625. If the award is an award for the first period of enrollment for which the eligible individual began pursuing his or her program of education, the beginning date will be the latest of the following dates: (A) the date the institution of higher learning certifies under paragraph (b) or (c) of this section; (B) one year before the date of the claim as determined by § 21.1029(b); (C) the effective date of the approval of the program; or (D) one year before VA receives the approval notice for the program of education. 38 C.F.R. § 21.9625 (a)(1) (2015). (The Board notes that in the statement of the case, the AOJ cited 38 C.F.R. § 21.4131, pertaining to commencing dates, which is virtually identical to the above regulation.) The "date of claim" is defined as the date on which a valid claim or application for educational assistance is considered to have been filed with VA, for purposes of determining the commencing date of an award of that educational assistance. 38 C.F.R. § 21.1029(b) (2015). In this case, the Veteran submitted an electronic application for Chapter 33 education benefits that was received by VA on May 15, 2011. Although the Veteran's claim was received on May 15, 2011, the SAA approved the on-the-job program effective January 1, 2013, and VA did not receive the approval notice for the course until April 11, 2014. (One year prior to the date VA received the approval is April 11, 2013.) Thus, the proper effective date is the latest of these, i.e., April 11, 2013, which is after the course ended. See 38 C.F.R. § 21.9625 (a)(1) (2015). However, the AOJ assigned the effective date of January 1, 2013 as the Veteran's training program was approved by the SAA on that date. The record reflects that the Veteran's claim for VA educational benefits was denied for the period in question (June 20, 2011 to January 1, 2013) because the facility which provided this training did not have the requisite approval from the pertinent State approving agency. Without such approval, he has no legal entitlement to such benefits, and an earlier effective date prior to January 1, 2013 is not warranted under the governing law and regulations. The Veteran has contended that he is entitled to equitable relief in this case, because he did everything in his power to obtain the necessary approval by the SAA, and because other Veterans have been awarded VA educational benefits for the same program. While the Board is sympathetic to the Veteran's contentions, it is bound by the law, and this decision is dictated by the relevant statutes and regulations. The Board is without authority to grant eligibility to benefits simply because it might perceive the result to be equitable. See 38 U.S.C.A. §§ 503, 7194; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). "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 v. Derwinski, 2 Vet. App. 429, 432- 33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). The authority to award equitable relief is committed to the discretion of the Secretary of VA under 38 U.S.C.A. § 503(a), and the Board is without jurisdiction to consider that which is solely committed to the Secretary's discretion. See McCay v. Brown, 9 Vet. App. 183, 189 (1996). As the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Assignment of an effective date prior to January 1, 2013, for a grant of educational assistance benefits for on-the-job training at [redacted] under the Post-9/11 GI Bill is denied. ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs