Citation Nr: 18158554 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 15-34 629 DATE: December 17, 2018 ORDER Continued entitlement to Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code is denied. FINDING OF FACT 1. Appellant was notified in March 2012 that her DEA benefits would end if she changed her program of study. 2. Appellant’s change from the Healthcare Reimbursement program to the Social Work Assistant program constituted a change in the educational, professional, or vocational objective for which she entered training. CONCLUSION OF LAW Chapter 35 DEA benefits are no longer available to appellant as a matter of law. 38 U.S.C. §§ 3501, 3512, 5103A, 5107; 38 C.F.R. § 21.3046. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1976 to December 1978. Appellant is the Veteran’s spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 decision issued by the Department of Veterans Affairs (VA) Atlanta Education Center in Decatur, Georgia. The appellant testified before the undersigned in a July 2016 hearing. The hearing transcript is of record. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2014). In October 2016, this matter was previously before the Board and entitlement to DEA benefits was denied. This Board decision was appealed to the Court of Appeals for Veterans Claims (Court). In April 2018, the Court issued a Memorandum Decision that vacated the Board’s October 2016 determination. The matter has now returned to the Board. 1. Entitlement to DEA benefits under Chapter 35, Title 38, United States Code Basic eligibility for Chapter 35 DEA benefits is established in one of several ways, including being the spouse of a veteran who has a total disability permanent in nature resulting from a service-connected disability. 38 U.S.C. § 3501; 38 C.F.R. § 21.3021. Here, the Veteran is rated totally disabled based on a service-connected mental health disorder. Appellant is his spouse. See Marriage license. The beginning date for DEA benefits for an eligible spouse of a veteran with a permanent and total disability evaluation effective after November 30, 1968, is the effective date of the veteran’s total and permanent rating, the date of notification, or any date between the dates as specified by the eligible spouse. 38 U.S.C. § 3512 (b)(1); 38 C.F.R. § 21.3046(a)(2)(iii). Educational assistance shall not exceed 10 years after the date on which VA first notified the veteran that he or she had a service-connected total disability permanent in nature. 38 U.S.C. § 3512(b)(1)(B). In Ozer v. Principi, 14 Vet. App. 257 (2001), the Court found that the VA regulation limiting the period of a spouse’s eligibility for educational assistance to 10 years (i.e., 38 C.F.R. § 21.3046(c)(1)) was invalid because the 10-year limitation period was not contained or authorized by a previous version of 38 U.S.C. § 3512(b)(1). This decision had the effect of ending delimiting dates, provided that there was still Chapter 35 entitlement remaining or if Chapter 35 eligibility was just established on that basis. However, pursuant to Public Law 107-103, Congress subsequently invalidated Ozer and reinstated a 10-year delimiting period in which spouses may, upon first becoming eligible, use Chapter 35 spouse benefits. Pub. L. 107-103, § 108(c)(4), 115 Stat. 985 (2001). The statute and regulation, cited above, provide for different treatment depending on whether eligibility for DEA benefits was determined before or after December 27, 2001. 38 U.S.C.A § 3512; 38 C.F.R. § 21.3046. If, like here, a spouse was granted DEA benefits before December 27, 2001, she falls under a special class of beneficiaries protected by Ozer and allowed benefits with no end date unless and until she changes her program of study. When a change occurs, the end date will be 10 years from the beginning date as determined by subsection (a). 38 C.F.R. § 21.3046(c)(1)(ii). A change of program is defined as a change by an eligible person in the educational, professional, or vocational objective for which the eligible person entered training. 38 C.F.R. § 21.4234(a)(1). The term “change of program of education” shall not be deemed to include circumstances where the eligible person has successfully completed a preceding program of education; the program leads to a vocational, educational, or professional objective in the same general field as the former program; the person only changes the type of courses needed to attain a vocational objective; the former program is a prerequisite or generally required for the subsequent program; in the case of a change from the pursuit of a subsequent program to the pursuit of a former program, the person resumes pursuit of the former program without loss of credit or standing; or the change is at the same educational institution and such educational institution determines that the new program is suitable to the aptitudes, interests, and abilities of the person and certifies to the Secretary the enrollment of the person in the new program. 38 U.S.C. § 3691; 38 C.F.R. § 21.4234(a)(2). After a review of the record and applicable law, the Board finds that the appellant is no longer eligible for DEA benefits as a matter of law. See 38 U.S.C. § 3512; 38 C.F.R. § 21.3046. The Veteran was granted 100 percent disability in March 1993 and notified at that time. Appellant received a decision in June 2000 affirming her eligibility to DEA benefits. Appellant began and continued to seek education benefits for the next 15 years. In March 2012, the Agency of Original Jurisdiction (AOJ) sent a letter giving her notice that there was no end to her DEA benefits unless she changed her program. The letter explained that if she changed her program, her delimiting date would be June 9, 2010. According to documents from appellant’s school in Florida, she began studying Healthcare Reimbursement at the time of the March 2012 letter; her enrollment in this program was from May to December 2012. In December 2014 and March 2015, appellant submitted VA forms 22-5495, Dependents’ Request for Change of Program or Place of Training. She requested to attend a school in Georgia and enter a Social Work Assistant program. Records from the Georgia school show she was enrolled in that program spring 2015. After reviewing the totality of the relevant evidence, the Board finds appellant changed her program. In that regard, the Board finds that appellant’s change from the Healthcare Reimbursement program to the Social Work Assistant program constituted a change in the educational, professional, or vocational objective for which she entered training. In doing so the Board had taken the Court’s advice of considering the M22-4 and that when determining whether a new program leads to an educational, professional, or vocational objective in the same general field as the immediately preceding program, "general field" should be interpreted broadly and that if a plausible argument may be made that the new program is in the same general field, VA resolve the issue in favor of the student. The Board is not bound by the Manual. 38 C.F.R. § 19.5. However, even with this tenant in mind, the Board finds appellant changed her program. The Board will explain its reasons and bases for the above finding in more detail below. Appellant submitted descriptions of the two programs as: (1) preparing students to be medical coders and billers to classify medical records according to accepted standards and (2) equip students with skills, knowledge, values, and sensitivity to effectively serve human needs in a variety of community settings. Therefore, in the Healthcare Reimbursement program, her educational/vocational objective was to be able qualify for a job coding and processing medical bills and records. Her new educational/vocational objective was to be able obtain a job assisting a social worker in serving human needs in a variety of community settings. The Board further finds that appellant’s change does not fall under any of the exceptions from 38 U.S.C. § 3691 and 38 C.F.R. § 21.4234(a)(2). Appellant had not successfully completed a preceding educational program, and her former program was not a prerequisite for the new program. As noted, she changed her vocational objective, which was more than changing the types of courses for the same objective. The change was also not certified to the Secretary as suitable for appellant by the same educational institution in which she had been enrolled. Finally, the professional/vocational objective for healthcare reimbursement and social work assisting were not in the same general field. As noted in the descriptions above, healthcare reimbursement deals with coding and administrative tasks while social work assisting serves human needs in a community. Appellant stated that her new school did not offer a program in Healthcare Reimbursement. See September 2015 statement; 2016 Board hearing. However, the course catalog from appellant’s Georgia school shows a program in Health Information Coding. In a May 2015 statement, she indicated that she was unable to travel to the campus that offered those courses. The Board finds additionally probative that appellant, who was enrolled in both programs, also believed that she had changed her program. Prior to going before the Court of Appeals for Veterans Claims (Court), appellant did not dispute that she had changed her program. Her statements made at the time she changed programs support the conclusion that the programs were not in the same general field. Earlier in the appeal process, appellant asserted that she was informed by a representative on the VA national number that she could change her program. She asserted that she should not be penalized by this misinformation. The payment of government benefits must be authorized by statute; if appellant was given erroneous advice by a government employee, that misinformation is not a basis to prevent the government from denying benefits. See McTighe v. Brown, 7 Vet. App. 29, 30 (1994). Both VA and the appellant are limited to the benefits authorized by statute. See Morris v. Derwinski, 1 Vet. App. 260, 265 (1991) (stating that VA benefits are created by statute, as implemented by regulation, and “[t]he Supreme Court has held that everyone dealing with the Government is charged with knowledge of federal statutes and lawfully promulgated agency regulations”). (Continued on the next page)   The Board understands appellant’s frustration with misunderstanding that she could change her program when she moved, but appellant pursued degrees in programs including, Interior Design Technology, Travel Agent, Marketing Management, Pharmacy Technician, Cosmetology, Early Childcare Management, Logistics and Distribution, Food and Beverage Management, and Healthcare Reimbursement. She used her DEA benefits for much of the past 15 years. She had an opportunity to obtain a degree prior to the ending of her benefits. The law requires her delimiting date of June 9, 2010 be enforced when she changed her educational program. 38 C.F.R. § 21.3046(a), (c)(1)(ii). She was notified of this result in the March 2012 letter before she made the change. Therefore, appellant is no longer eligible for DEA benefits as a matter of law. See 38 C.F.R. § 21.3046. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.P. Armstrong