Citation Nr: 1750114	
Decision Date: 11/03/17    Archive Date: 11/13/17

DOCKET NO.  13-27 138	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to eligibility for vocational rehabilitation and employment (VRE) benefits under the Veterans Retraining Assistance Program (VRAP) component of the Veterans Opportunity to Work (VOW) to Hire Heroes Act of 2011.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Laura E. Collins, Counsel

INTRODUCTION

The Veteran served on active duty from March 1987 to June 1995.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 administrative decision issued by a Department of Veterans Affairs (VA) Regional Office.

In June 2015 the Board remanded this case for a hearing, which was scheduled to take place in January 2017.  However, the Veteran withdrew his hearing request and asked that the Board proceed with the adjudication of his case.


FINDING OF FACT

The authority to make payments under the VRAP ended on March 31, 2014.


CONCLUSION OF LAW

Due to the lapse in Congressional authorization to make VRAP payments, the Board has no jurisdiction to adjudicate the merits of this appeal.  38 U.S.C. § 7104(a) (2016); 38 C.F.R. §§ 20.101(a) (2016); VOW to Hire Heroes Act of 2011, Pub. L. No. 112-56, 125 Stat. 713, §§ 201-65 (Nov. 21, 2011).


REASONS AND BASES FOR FINDING AND CONCLUSION

Generally, the Board has jurisdiction to decide all questions of law and fact necessary to a decision by the Secretary of Veterans Affairs under a law that affects provision of benefits by the Secretary to veterans or their dependents or survivors.  38 U.S.C.A. § 7104(a) (2016); 38 C.F.R. § 20.101(a) (2016).

The VRAP was a component of the VOW to Hire Heroes Act of 2011.  Pub. L. 112-56, §§ 201-65 (Nov. 21, 2011).  In relevant part, Congress established the program to provide assistance to eligible veterans from October 1, 2012 to March 31, 2014.  Id. at § 211(a).  The statute provides that "[t]he authority to make payments under this section shall terminate on March 31, 2014."  Id. at § 211(k).

There are no alternative bases for an award of appropriate relief in the absence of Congressional authorization.  The doctrine of equitable tolling is not applicable in this case.  "[E]quitable tolling pauses the running of, or 'tolls,' a statute of limitations."  Aldridge v. McDonald, 27 Vet. App. 392, 393 (2015) (citing Lozano v. Montoya Alvarez, 134 S.Ct. 1224, 1231 (2014)).  Equitable tolling has been applied to VA benefits programs.  See, e.g., Andrews v. Shinseki, 26 Vet. App. 193, 198-99 (2013) (applying equitable tolling to claim for vocational rehabilitation services); Smith v. Derwinski, 2 Vet. App. 429, 434 (1992) (applying equitable tolling to claim for pension); Toomer v. McDonald, 783 F.3d 1229, 1231 (Fed. Cir. 2015) (applying equitable tolling to claim for disability compensation).  When equitable tolling has been applied to VA, Congress had authorized payments for the underlying programs on an ongoing basis.  Thus, VA would be able make payments as if the statutes of limitations had been satisfied.  However, the Congressional authorization to make VRAP payments has lapsed.  Although the Board is sympathetic to the appellant's circumstances, the Board may not award equitable relief that is otherwise restricted by statute.  See Rosenberg v. Mansfield, 22 Vet. App. 1, 5 (2007) ("The [U.S.] Supreme Court has held that the Appropriations Clause of the Constitution, U.S. Const. art. I, § 9, cl. 7, precludes the judiciary from ordering an award of public funds to a statutorily ineligible claimant on the basis of equitable estoppel." (citing OPM v. Richmond, 496 U.S. 414, 430 (1990)), aff'd sub nom. Rosenberg v. Peake, 296 F. App'x 53 (Fed. Cir. 2008); Andrews v. Principi, 16 Vet. App. 309, 316 (2002) ("[OPM] held that payments from the Federal Treasury are limited to those authorized by statute."), aff'd, 351 F.3d 1134 (Fed. Cir. 2003). 

As such, the Board no longer has authority to grant appropriate relief.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.101(a).  The appeal must be dismissed as moot.


ORDER

The appeal is dismissed.



____________________________________________
D. JOHNSON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs