Citation Nr: 1629351 Decision Date: 07/22/16 Archive Date: 08/01/16 DOCKET NO. 14-27 098 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to VA educational assistance benefits under the Veterans Retraining Assistance Program (VRAP) for the period from January 19, 2014 through February 2, 2014. ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The appellant is a Veteran who had unverified active duty service from February 1972 to July 1974. This case comes to the Board of Veterans' Appeals (Board) on appeal from a February 2014 administrative determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. FINDING OF FACT The Veteran was enrolled as a full-time student with 12 credit hours at El Paso Community College for the period from January 19, 2014 through February 2, 2014, despite the fact that one class of 3 credit hours had a belated start due to the professor's unplanned absence until February 3, 2014; in January 2014, the certifying official of the college appeared to indicate on VA form 22-1999 that the Veteran was a full-time student from January 19, 2014 to May 17, 2014 and accordingly requested advance payment of VRAP benefits for that period. CONCLUSION OF LAW VRAP benefits for the period from January 19, 2014 through February 2, 2014 are warranted. 38 U.S.C.A. § 4100 (West 2014); Pub. L. No. 112-56, 125 Stat. 713, § 211 (Nov. 21, 2011). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, describes VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. In the present case, no VCAA notice was sent to the Veteran. The United States Court of Appeals for Veterans Claims (Court) has held, however, that the VCAA notification procedures do not apply in cases where the applicable chapter of Title 38 of the United States Code contains its own notice provisions. See Barger v. Principi, 16 Vet. App. 132, 138 (2002). VA educational programs contain their own provisions that address notification and assistance. See 38 C.F.R. §§ 21.1031, 21.1032. In any case, as the decision herein is favorable to the Veteran, compliance with the notification and assistance provisions need not be addressed. Factual Background, Legal Criteria, and Analysis The Veteran seeks to establish eligibility to benefits under the Veterans Retraining Assistance Program (VRAP). See Pub. L. 112-56, Title II, § 211, 125 Stat. 713. The VRAP is a component of the VOW to Hire Heroes Act of 2011, passed by Congress, and signed into law by the President. VRAP offers up to 12 months of training assistance to unemployed Veterans. Participants may pursue an approved program of education offered by a community college or technical school that leads to an associate degree or a certificate (or other similar evidence of the completion of the program of education or training) and is designed to provide training for a high-demand occupation. VRAP § 211(b). Pursuant to the VRAP, an eligible Veteran must: be at least 35 but not more than 60 years old; be unemployed; have last been discharged under other than dishonorable conditions, not be eligible for any other VA education benefit programs, not be in receipt of VA compensation due to unemployability, and not be or have been in the last 180 days, enrolled in a Federal or state job training program. VRAP § 211(e). A "program of education" is any curriculum or any combination of unit courses or subjects pursued at an educational institution which is generally accepted as necessary to fulfill requirements for the attainment of a predetermined and identified educational, professional, or vocational objective. Such term includes any curriculum of unit courses or subjects pursued at an educational institution which fulfill requirements for the attainment of more than one predetermined and identified educational, professional, or vocational objective if all the objectives pursued are generally recognized as being reasonably related to a single career field. 38 U.S.C.A. § 3452(b). 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. VRAP § 211(b). The Veteran was receiving benefits under VRAP toward his education at El Paso Community College. He first received a Certificate of Eligibility in August 2012, when he was notified that he was entitled to receive benefits for full-time training and that he had until April 1, 2014 (the end date of the program) to use his benefits. Thereafter, he was awarded benefits for periods from January 2013 to May 2013, May 2013 to June 2013, and August 2013 to December 2013. In February 2014, the RO informed the Veteran that based on the enrollment information received from his school, he was awarded benefits for the period from February 3, 2014 through March 2014 (this was later amended to the end of his term on May 16, 2014). The RO also informed the Veteran that he could not be paid for the period beginning January 19, 2014 through February 2, 2014 because his training was less than full time. The Veteran disagreed with the decision not to pay him VRAP benefits for this two-week period. Before the period in question, enrollment certification documents from the school show that various adjustments in student status were made, namely, a class was dropped and another was added. One of those documents, VA Form 22-1999b, shows that for the period from January 19, 2014 through May 17, 2014, the Veteran was taking nine credit hours in classroom training for the semester, and an additional three credit hours for the period from February 3, 2014 through May 16, 2014. On the same document, the school requested "advance pay" on the basis of "hardship" for the period from January 19, 2014 through May 17, 2014. (The statement of the case (SOC) in May 2014 indicates that the VA issued the Veteran an advance payment on February 10, 2014 in the amount of $3,186.13 for his enrollment from February 3 through March 31, 2014, and that in May 2014 the VA awarded a lump-sum payment of $2,581.87 for the remainder of the term.) It appears that the school's certifying official indicated that the Veteran was a full-time student for the period beginning January 19, as "full" was indicated (but not explained) on the form. Nevertheless, the RO concluded that the Veteran was not considered a full-time student during the period from January 19, 2014 through February 2, 2014, and accordingly did not award VRAP benefits for this time period. In the SOC, the RO explained that the denial of benefits for this two-week period was correct because the Veteran was only certified by the school for nine credit hours (three-quarter-time training) from January 19, 2014 to February 2, 2014, and did not begin his full-time training until February 3, 2014. In other words, the Veteran was enrolled in several classes, one of which had a different beginning date, and it was not until February 3, 2014 that his classes together equated to full-time training. The Board concludes that based upon the information provided by the school's certifying official, as well as the credible evidence furnished by the Veteran, he was arguably enrolled in full-time training, and therefore should be considered a full-time student, from January 19, 2014 through February 2, 2014. The VRAP program requires "full-time" enrollment, and under 38 C.F.R. § 21.4270, full-time enrollment is no less than 14 clock hours, and the RO determined that 12 clock hours was the minimum for full-time enrollment. In statements received from the Veteran in May 2014 and June 2014, he strongly maintains that he was a full-time student for the entire semester beginning on January 19, 2014, and that the start date for VRAP benefits should not have been on February 3, 2014. He asserted that he was aware of the requirement to enroll in at least 12 credit hours per semester to have full-time status in order to receive VRAP benefits, and that on January 8, 2014 he registered for 12 credit hours for his spring 2014 semester. He reported that the discrepancy in the school reporting 9 credit hours for the period of January 19 through February 2, 2014 was owing to the fact that one of his classes (Introduction to Computers) had a late start. He stated that attendance at the five regularly scheduled classes in the two-week period between January 19 and February 3, 2014 was not mandatory but that credit for attendance was given "so as not to interfere with any type of financial aid a full-time student was receiving." He stated that due to the late start, once the class began after February 2, each was changed from the original 50 minute class to a 1 hour and 10 minute class "to compensate for lost time in January 2014." He indicated that the school certifying official attempted to "correct the matter" by requesting an advance payment for January 2014 on his behalf, but that he instead received an advance payment for February and March 2014. He stated that he should not be held liable for the "administrative change" that was made to his computer class. The Veteran further explained, in a chronology of the beginning of his semester in January 2014, that he registered for classes totaling 12 credit hours on January 8, 2014, at which time his computer class was planned as a 50 minute course. A copy of a computer printout of his school registration on that date is of record, showing that he was registered and billed for a total of 12 credit hours. On January 17, 2014, a computer printout from the school website shows that his computer class was to begin on February 3, 2014 and last 70 minutes, three times a week. On that printout, the Veteran wrote that his professor was belatedly unable to make class beginning on January 19, and that an extra 20 minutes would be added to each class in the spring semester once the professor appeared. (Also at that time, the document shows that the Veteran dropped one 3 credit hour course but added another for 3 credit hours.) The Veteran further provided a copy (of poor quality, but still legible) of the course syllabus for his computer class that had a delayed start; the syllabus reflects various dates and clearly shows that the first two weeks of class were originally intended to take place between January 19 and February 3, 2014. Thus, the evidence in the file indicates that the Veteran registered for classes as a full-time (12 credit hour) student, on January 8, 2014, but that in the few days before class was scheduled to begin (as shown by the course syllabus), the professor was unable to attend the first two weeks, in the period from January 19 through February 2, 2014. Moreover, to make up for the lost time when the professor was absent, the classes were lengthened until the end of term. The turn of events relating to the delay of start for the computer class in question was beyond the control of the Veteran and the school, and it appears that the school attempted to make amends for those receiving financial aid by requesting an advance payment of VRAP benefits on the Veteran's behalf to cover for the period from January 19 through February 2, 2014, as reported by the Veteran. Thus, while his computer class did not actually start until February 3, 2014 (the technical date on which his enrollment for the computer class belatedly began), as reflected on an enrollment certification document, the school nevertheless considered him a full-time student from the beginning of term on January 19, 2014 (the technical date on which his class was scheduled to begin), as seen on the course syllabus. The school certifying official's evident belief that the Veteran's attendance should be deemed full-time from January 19 through February 2, 2014, according to the institution's standards, is sufficient in the unique circumstances of this case to establish full-time attendance for the period. Resolving reasonable doubt in the Veteran's favor, entitlement to education benefits under VRAP for the period from January 19, 2014 through February 2, 2014 is granted. 38 U.S.C.A. § 5107(b). ORDER The appeal seeking benefits under VRAP for the period from January 19, 2014 through February 2, 2014 is granted. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs