Citation Nr: 1753368 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 14-09 449 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to benefits under the Veterans Retraining Assistance Program for the period from August 26, 2013, to October 2, 2013. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Scarduzio, Associate Counsel INTRODUCTION The Veteran had active service from September 1981 to September 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2013 decision of the Department of Veterans Affairs (VA) Regional Office (RO) that determined that the Veteran was not eligible for benefits under the Veterans Retraining Assistance Program (VRAP) for the term from August 26, 2013, to October 2, 2013. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in November 2016. A transcript of the hearing is of record. In a March 2014 statement in support of his claim for VRAP benefits prior to October 3, 2013, and again in his hearing testimony, the Veteran asserted that he was also denied VRAP benefits for classes attended during the Spring 2014 semester beginning January 21, 2014. As the issue of entitlement to VRAP benefits for that period has yet to be adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over that matter. Therefore, it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The Board's review includes paper and electronic records. FINDINGS OF FACT 1. The Veteran enrolled in four courses as a full-time student at Eastfield Community College; the courses began August 26, 2013. 2. The Veteran withdrew from two of his courses on October 3, 2013, and enrolled in two additional courses for the remainder of the semester. CONCLUSION OF LAW The criteria for eligibility for benefits under the Veterans Retraining Assistance Program for the term from August 26, 2013, to October 2, 2013, have not been met. 38 U.S.C. § 4100 (2012); Pub. L. No. 112-56, 125 Stat. 713, § 211 (Nov. 21, 2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks to establish eligibility to benefits under the Veterans Retraining Assistance Program. 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, signed into law by the President, and is set forth as a note in 38 U.S.C.A. § 4100. 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). VRAP § 211(b). The VRAP offered up to 12 months of training assistance to unemployed Veterans who met the following basic eligibility criteria: were at least 35 but no more than 60 years old at the time of application; were unemployed at the time of application; received an other than dishonorable discharge; were not eligible for any other VA education benefit program; were not in receipt of VA compensation due to unemployability; and were not enrolled in a federal or state job training program. The VRAP ended on March 31, 2014. However, as the Veteran's appeal for benefits has been pending since November 2013, a decision on whether he is eligible for VRAP benefits is warranted. Of particular relevance in this case, the applicable law provided that the retraining assistance benefits may only be used by a veteran to pursue a program of education for training, on a full-time basis, that is: approved by VA, offered by a community college or technical school, leads to an associate degree or certificate, and is designed to provide training for a high-demand occupation. See Pub. L. No. 112-56, 125 Stat. 713, § 211(b). In this case, the Veteran's basic eligibility for VRAP benefits is not in question, and the evidence shows that he was pursuing a program of education that was approved by VA, offered by a community college or technical school and designed to provide training for a high-demand occupation. The issue in this case is whether the Veteran was pursuing training leading to an associate degree or certificate on "a full-time basis." The record reflects that the Veteran enrolled in four courses at Eastfield Community College for the Spring 2013 semester, which began on August 26, 2013, totaling 14 semester hours. On October 3, 2013, however, two of the original four courses were dropped as they were discovered to be repetitive of course credit he had already obtained in past education. The Veteran then enrolled in two flexible education courses that same date, believing it would maintain his full-time status. As the Veteran withdrew from two of the original courses, however, VA found the Veteran certified as a full-time student effective October 3, 2013, for purposes of the VRAP. The Veteran asserts that the effective date of his eligibility for benefits under the program should be August 26, 2013, because he completed the semester with the required semester hours, and the classes he took were selected with the assistance of a student advisory counselor at the institution. In view of all of the evidence of record, as well as the language of the applicable law, the Board finds that entitlement to benefits is not warranted in this case. 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. Participants will not receive benefits for any time period during which the training drops below full-time. VRAP § 211(b). "Full-time" enrollment in a professional accredited and equivalent program involving standard collegiate courses, including cooperative and external degree programs, is 14 semester hours or equivalent. See 38 C.F.R. §§ 21.4270(c), 21.4272(a). Nonetheless, when the institution certifies that all undergraduate students enrolled for a minimum of 12 or 13 semester hours or the equivalent are charged full-time tuition, or considered full time for other administrative purposes, such minimum hours will establish the criteria for full-time measurement and such minimum hours will be considered full-time. 38 C.F.R. § 21.4270 (c), Note 2. The evidence of record shows that the Veteran was not pursuing a program of education leading to an associate degree on a full-time basis prior to October 3, 2013, as required by the VRAP statute, as the required minimum semester hours for "full-time" status were not met upon the Veteran's withdrawal of two of the four courses that began on August 26, 2013. Consequently, entitlement to retraining benefits under the VRAP is not warranted for that period. In reaching its conclusion, the Board has considered the Veteran's argument that he took courses based on a student advisory counselor's advice; however, the statute does not allow for benefits to be awarded on an equitable basis. Unfortunately, the Board is without authority to grant benefits sought in the present case. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Thus, the Board regretfully must deny his claim. ORDER Eligibility for benefits under the Veterans Retraining Assistance Program for the term from August 26, 2013, to October 2, 2013, is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs