Citation Nr: 20008440 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 13-30 933A DATE: January 31, 2020 ORDER Entitlement to the Veterans Retraining Assistance Program (VRAP) for training at Cortiva Institute from June 1, 2013, to October 13, 2013, is denied. FINDINGS OF FACT 1. In September 2012, the Veteran was notified by VA that he was eligible to receive VRAP benefits for a full-time program of education or training. 2. From June 1, 2013, to October 13, 2013, the Veteran was enrolled in less than full-time training in the Massage Program at Cortiva Institute. CONCLUSION OF LAW The criteria for the award of VA educational assistance benefits under VRAP for courses from June 1, 2013 to October 13, 2013, have not been met. VOW to Hire Heroes Act of 2011, Pub. L. No. 112-56, 125 Stat. 713, § 211 (Nov. 21, 2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served on active duty from February 1982 to August 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2015, the Veteran testified at a Board hearing before the undersigned that was held at the RO. A transcript of the hearing is of record. This matter was previously before the Board in May 2015, August 2016 and September 2018 at which times the case was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. There has been substantial compliance with the Board’s remand directives. Stegall v. West, 11 Vet. App. 263 (1998). The matter is once again before the Board. As noted, the issue on appeal concerns the Veteran’s entitlement to benefits under VRAP from June 1, 2013 to October 13, 2013. By way of background, 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. VRAP offered up to 12 months of training assistance to unemployed Veterans who met the following eligibility criteria: were at least 35 but no more than 60 years old at the time of application; were unemployed on the date of application; received an other than dishonorable discharge; were not eligible for any other VA education benefit program (e.g., the Post-9/11 GI Bill, Montgomery GI Bill, Vocational Rehabilitation and Employment Assistance (VREA)); were not in receipt of VA compensation due to unemployability; and were not enrolled in a federal or state job training program. Participants must have attended a program of education on a full-time basis 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 ($1,564 effective October 1, 2012 and $1,648 effective October 1, 2013). Participants did not receive benefits for any time period during which the training dropped below full-time status. Participants must have been enrolled in a VA-approved program of education offered by a community college or technical school. The program must have led to an Associate Degree, Non-College Degree, or a Certificate, and trained the Veteran for a high-demand occupation. Full time enrollment for a particular educational program is measured based on credit hours per semester or quarter or based on clock hours, depending on the nature of the program. With respect to trade, technical, high school, and high school preparatory courses, and notwithstanding exceptions noted in 38 C.F.R. § 21.4270(b), full-time enrollment is either 18 or 22 clock hours per week (exclusive of supervised study) depending on whether shop practice is an integral part of a trade or technical course not leading to a standard college degree, or whether theory and class instruction constitute more than 50 percent of the required hours in a trade or technical course not leading to a standard college degree. 38 C.F.R. § 21.4270(a)(1)(i), (ii) (2019). The pertinent facts in this case show that in September 2012, the RO notified the Veteran that he had been awarded a certificate of eligibility for VRAP benefits to be applied to full-time training in the Professional Massage Therapy program at Cortiva Institute in Pinellas Park, Florida. The Veteran was notified that he was entitled to 12 months of benefits and that he had until April 1, 2014 to use these benefits. He was also advised to take the September 2012 notice letter to the Veteran’s certifying official at the Cortiva Institute and to ask him or her to submit the Veteran's enrollment certification to VA. The RO notice indicated that once the Veteran’s enrollment information was received from the school, he would receive an additional educational award letter. An October 2012 enrollment certification (VA Form 22-1999) from Cortiva Institute shows that the Veteran was enrolled from October 9, 2012 to October 13, 2013 in a 12-month residential clock hour program and that he would be attending 15 clock hours per week at “1/2” time. It was also noted that his tuition and fees were in the calculated amount of $12,355.00. In November 2012, the RO informed the Veteran that after receiving his enrollment form from Cortiva Institute, it was unable to pay him benefits for the program (though he was eligible), because he was not enrolled full time. A few days later in November 2012, the RO received an updated enrollment certification (VA Form 22-1999b), from Cortiva Institute showing that the Veteran was scheduled to attend 18 clock hours per week during his first three quarters at the school and 21 hours per week for his final quarter at the school. This form also shows his status as “full”. Based on this updated information, the RO, in a November 16, 2012 letter, awarded the Veteran VRAP benefits at a rate of $1564 per month. Thereafter, pursuant to a compliance survey conducted in February 2013, the RO determined that for the previous term and the term in progress and the upcoming terms, the Veteran had been scheduled to attend Cortiva Institute only 15 hours per week on average. Consequently, the RO concluded that the Veteran’s enrollment should have never been certified. In a June 2013 decision, the RO found that the Veteran had not been enrolled in the school full time and rescinded the Veteran's entitlement to VRAP benefits. This resulted in the termination of the monthly VRAP payments and assessment of an overpayment of $12,094.93 (i.e. for VRAP payments already disbursed to the Veteran covering the period from October 9, 2012 to May 31, 2013). However, due to the issuance of a favorable waiver decision in August 2013, the Veteran did not have to repay the $12,094.93 that had already been disbursed. The present appeal, as noted, stems from the Veteran’s claim that he is entitled to VRAP benefits for the remainder of the one-year period that he was initially awarded VRAP benefits, but which VA did not disperse benefits, i.e., from June 1, 2013 to October 13, 2013. In support of his claim, the Veteran reports that in addition to the 16 hours per week at the school site, he spent many additional hours outside of school studying, researching and practicing massage techniques. He surmises that considering the total time he needed to put into his training, Cortiva Institute may have considered him a full-time student when it reported him as a full-time student to VA (in November 2012). However, after requesting clarification from Cortiva Institute regarding the Veteran’s enrollment status, the financial aid officer at the school reported the following to VA via electronic mail in September 2019: [The Veteran] was enrolled as a part time student for his entire program. He was originally certified as a full time student and subsequently identified as a part time student. His weekly hours would range from 14-16 hours per week. I have listed the weekly hours for each 10 week term on the attached degree audit. This discrepancy was discovered in a VA compliance visit and corrected by both parties. The Veteran also asserts via his July 2013 notice of disagreement and his November 2015 Board hearing testimony that he was misinformed by the financial aid officer at Cortiva Institute who told him that he would still be considered a full-time student if he switched from enrolling in 30 hours per week of day classes to 16 hours per week of night classes. He said that had he not been given this faulty information, or had he been informed sooner that the information was not correct, he would have switched to day classes. While this misinformation is indeed unfortunate, inaccurate advice does not create any legal right to benefits where such benefits are otherwise precluded. See Harvey v. Brown, 6 Vet. App. 416, 424 (1994) (holding that an appellant was not entitled to education benefits based on his assertion that misleading or erroneous information was provided when the appellant did not meet the statutory eligibility criteria established by Congress). Although the Board is sympathetic to the Veteran’s arguments, this does not change the fact that he did not meet the requisite criteria for eligibility for VRAP benefits from June 1, 2013 to October 13, 2013, since he did not attend Cortiva Institute full time during this period. 38 C.F.R. § 21.4270. Thus, as the law in this case, and not the evidence, is dispositive of the appeal, the claim must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Shawkey, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.