Citation Nr: 1751840 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 08-26 245A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to reimbursement or payment under Chapter 30, Title 38, United States Code, for fees paid for an Open Water Diver Certification test taken on March 14, 2007, and an Advanced Open Water Diver Certification test taken on March 30, 2007. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD K. R. Fletcher INTRODUCTION The Veteran had active service from November 1998 to June 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2007 determination by the Department of Veterans Affairs (VA) Regional Office (RO), in St. Louis, Missouri. In addition to the paper education file, the Board has reviewed the Veterans Benefits Management System (VBMS) electronic claims file associated with the Veteran's claim. FINDINGS OF FACT 1. The Veteran was awarded VA education benefits under Chapter 30 in August 2003. 2. The Veteran took an open water diver certification test on March 14, 2007, and an advanced open water diver certification test on March 30, 2007. 3. The open water diver certifications have not been approved by either a state approving agency (SAA) or by VA for reimbursement. CONCLUSION OF LAW The criteria for reimbursement or payment for fees paid for an Open Water Diver Certification test taken on March 14, 2007, and an Advanced Open Water Diver Certification test taken on March 30, 2007, have not been met. 38 U.S.C. §§ 3001-3021, 3034, 3680A, 3689 (2012); 38 C.F.R. §§ 21.4150-21.4200, 21.4268, 21.7000, 21.7110, 21.7120, 21.7122 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In some cases, however, these provisions need not be considered 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, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). See also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law). This is such a case. As will be discussed, the facts are not in dispute; instead, the resolution of the claim is wholly dependent on interpretation of the applicable law and regulations. The VCAA is therefore not applicable and need not be addressed in this case. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also VAOPGCPREC 5-2004 (June 23, 2004). The Veteran seeks reimbursement for fees paid for two diver certification tests taken in March 2007. He submitted copies of the certifications and payment in April 2007. Chapter 30 of Title 38, U.S. Code, provides VA educational assistance programs to assist in the readjustment of members of the Armed Forces to civilian life after their separation from military service. 38 U.S.C. §§ 3001-3021. The applicable law provides, in pertinent part, that VA will provide educational assistance to an eligible veteran who is pursuing an approved program of education, or has taken an approved licensing or certification test. 38 U.S.C. §§ 3014, 3689; 38 C.F.R. § 21.7110(a). A program of education, in pertinent part, is any unit course or subject or combination of courses or subjects, which is pursued at an educational institution; or an approved full-time program of apprenticeship or of other on-job training. 38 C.F.R. § 21.7020(b)(23). Generally, VA will approve, and will authorize payment of an educational assistance allowance for, the individual's enrollment in any course or subject which forms a part of an approved program of education. 38 C.F.R. § 21.7120(a). VA will not pay educational assistance for an enrollment in any course which is avocational or recreational in character. 38 C.F.R. § 21.7120(b). A certification test is a test that an individual must pass in order to receive a certificate that provides an affirmation of an individual's qualifications in a specified occupation 38 C.F.R. § 21.7020(a)(52). Generally, except for approval of the licensing and certification tests and the organizations or entities offering these tests that, as provided in 38 C.F.R. § 21.4250 (c) (2), are VA's responsibility, the Secretary of Veterans Affairs delegates to each State approving agency the authority, within the respective State approving agency's jurisdiction provided in 38 C.F.R. § 21.4250(a), to approve licensing and certification tests and to approve the organizations or entities offering licensing and certification tests. 38 U.S.C. § 3689, 38 C.F.R. § 21.4268(a)(1). Further, no payment may be made for a licensing or certification test unless (1) the test has been approved under 38 U.S.C. § 3672(b)(2)(B); (2) the Secretary determines that the test is required under Federal, State or local law or regulation for an individual to enter into, maintain, or advance in employment in a predetermined and identified vocation or profession; or, (3) the test is generally accepted in accordance with relevant government, business, or industry standards, employment policies or hiring practices as attesting to a level of knowledge or skill required to qualify to enter into, maintain, or advance in employment in a predetermined and identified vocation or profession. 38 U.S.C. § 3689(b)(1). A licensing or certification test offered by a State, or a political subdivision of a State, is deemed to be approved. 38 U.S.C. § 3689(b)(2). See also 38 U.S.C. § 3672(b)(2)(B) (noting that a licensure test offered by a Federal, State, or local government is deemed approved). But see 38 C.F.R. § 21.4250(a)(5) (requiring that, if a State or political subdivision of a State offers a licensing test, only the State Approving Agency (SAA) for the State where the license will be valid may approve the test for VA payment). In this case, the Veteran applied for education benefits with the goal of obtaining a Master of Business Administration. See August 2003 application. He has been deemed eligible for education benefits in an approved program of education or training under Chapter 30. See August 2003 award letter in VBMS. Thus, basic eligibility is not at issue. In April 2007, the Veteran submitted a claim for reimbursement for certification test fees paid for diver examinations administered on March 14, 2007, and March 30, 2007, in Negril, Jamaica. Receipts show that he paid $717.60 to take these tests. After the Veteran submitted his claim for benefits, he was notified that the tests he took were not eligible for reimbursement as they had not been approved by the SAA in the state where the headquarters of the organization issuing the credential is located (in this case, California). The Veteran was provided with an address to apply for approval for his tests. See June 2007 RO determination letter. There is no indication from the Veteran that he has applied for approval from the appropriate organization. The Veteran's diver certification tests are not on the Web Enabled Approval Management System (WEAMS), which is the approval list of courses added by either a SAA or VA. As noted by the RO, these tests have not been approved by either a SAA or by VA acting as a SAA. See 38 C.F.R. §§ 21.4250(a), 21.4268. Moreover, the Board finds that there is no evidence that the diver certification tests, which were clearly avocational or recreational in nature, would be of bona fide use in the pursuit of his contemplated business or occupation. See 38 C.F.R. § 21.7120(b). Thus, the tests in question are not a "program of education" as defined by 38 U.S.C.A. § 3452(b) and reimbursement for the tests in question is not permitted. Accordingly, the Board must deny the Veteran's claim for payment or reimbursement. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Reimbursement or payment for fees paid for an Open Water Diver Certification test taken on March 14, 2007, and an Advanced Open Water Diver Certification test taken on March 30, 2007, is denied. ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs