Citation Nr: 1756167 Decision Date: 12/06/17 Archive Date: 12/15/17 DOCKET NO. 13-26 662 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to payment of Post 9/11 GI Bill (Chapter 33) education housing allowance for the interval from April 24, 2011, through May 15, 2011. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from January 1985 to October 1999, December 1999 to September 2000, July 2002 to September 2002, and November 2002 to December 2008. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2011 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. Jurisdiction of the appeal lies with the RO in St. Petersburg, Florida. The Veteran testified before the Board at an August 2016 hearing conducted via videoconference. A transcript of the hearing is of record. FINDING OF FACT Providing the Veteran the greater benefit, his rate of pursuit towards a program of education was greater than 50 percent as of April 23, 2011, the beginning of the interval between overlapping terms, and May 16, 2011, the end of the interval at issue. CONCLUSION OF LAW The Veteran is entitled to education housing payments for the interval period from April 24, 2011, through May 15, 2011. 38 U.S.C.A. §§ 3034(a), 2232(a), 3680 (West 2002); 38 C.F.R. §§ 21.9505, 21.9635, 21.9640, 21.9680 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Since the entire benefit sought on appeal has been granted, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out at 38 U.S.C. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2012)). See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Analysis This case involves the provisions of Chapter 33, Title 38, of the United States Code which were established by the Post-9/11 Veterans Educational Assistance Act of 2008. See Pub. L. 110-252, Title V, §§ 5002-5003, June 30, 2008. The provisions of the Act are codified at 38 U.S.C. §§ 3301-3324 with the implementing regulations found at 38 C.F.R. §§ 21.9500-21.9770. Under the provisions of Chapter 33, an individual who is pursuing a program of education at more than one-half time at an institution of higher learning located in the United States may receive, in pertinent part, a monthly housing stipend. 38 C.F.R. § 21.9640(b)(1). A monthly housing allowance is only provided for individuals with a rate of pursuit towards the objective of a program of education of more than 50 percent. 38 C.F.R. § 21.9640(b). Individuals pursuing a program of education offered entirely through distance learning may not receive a monthly housing allowance. 38 C.F.R. § 21.9640(b)(ii). VA may authorize payment of the monthly housing allowance for an interval or temporary school closing that occurs within a certified enrollment period (e.g., a period without instruction between consecutive school terms, quarters, or semesters). 38 C.F.R. § 21.9680(b)(6). VA will make no payment for an interval if the individual's rate of pursuit is one-half time or less on the last day of the certified enrollment period preceding the interval. 38 C.F.R. § 21.9680(b)(6)(ii). If a student is enrolled in overlapping enrollment periods whether before or after an interval (either at the same or different schools,) VA will determine whether the student is entitled to payment for the interval between the overlapping enrollment periods, and which dates the interval and enrollment periods will be considered to begin and end as follows: (1) By treating the ending date of each enrollment period as though it were the individual's last date of training before the interval, (2) By treating the beginning date of each enrollment period as though it were the individual's first date of training after the interval, (3) By examining the interval payment that would be made to the individual on the basis of the various combinations of beginning and ending dates, and (4) By choosing the ending date and beginning date that result in the highest payment rate as the start and finish of the interval for VA measurement purposes. See 38 C.F.R. § 21.9680(b)(6)(v) (2010). In the instant case, the RO determined that the Veteran is not entitled to a housing allowance for the period April 24, 2011, through May 15, 2011, as his rate of pursuit fell below one-half time during this period. The Veteran asserts that a housing allowance is warranted under the interval provisions discussed above. The Veteran was enrolled in courses at two institutions during the period at issue. He was enrolled for 3 resident credit hours at St. Petersburg College from January 10, 2011, through May 6, 2011. He was simultaneously enrolled in 3 distance learning credit hours from February 1, 2011, through April 23, 2011. Finally, the was enrolled in 3 resident credit hours during a summer term at St. Petersburg College from May 16, 2011, through July 8, 2011. Pursuant to the provisions of 38 C.F.R. § 21.9680(b)(6), the Board has considered various combinations of beginning and ending dates based on the Veteran's enrollment periods. It is undisputed that the Veteran's rate of pursuit was greater than one-half time from January 10, 2011, through April 23, 2011, and again beginning on May 16, 2011. Choosing April 23, 2011, as the ending date of the enrollment period and May 16, 2011, as the beginning date of the next enrollment period results in the highest payment rate, as the Veteran would be entitled to a monthly housing allowance for the interval under this scenario. Manual provisions, while not binding on the Board, suggest that the VA intent was that these provisions concerning start and stop dates, were to be interpreted in a way as to be most favorable to the Veteran. Therefore, in accordance with applicable regulations, and viewing the evidence in the light most favorable to the Veteran, the Board finds that the Veteran is entitled to education housing payments for the interval period from April 24, 2011, through May 15, 2011. ORDER The appeal is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs