Citation Nr: 21074635
Decision Date: 12/15/21	Archive Date: 12/15/21

DOCKET NO. 17-36 337A
DATE: December 15, 2021

ORDER

Entitlement to education benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) is dismissed.

REMANDED

Entitlement to education benefits under Veterans Retraining Assistance Program (VRAP) is remanded.

Entitlement to work-study education benefits is remanded.

FINDING OF FACT

The United States Court of Appeals for Veterans Claims (Court) issued a Joint Motion to Terminate in Part an April 2020 Board decision that denied entitlement to Chapter 33 education benefits.

CONCLUSION OF LAW

Because the United States Court of Appeals for Veterans Claims has issued a Joint Motion to Terminate the Appeal in Part between the Veteran (Appellant) and the Secretary of VA (Appellee) with respect to entitlement to education benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill), the appeal as to this issue is now moot, and the Board has no jurisdiction to adjudicate the merits of this claim. 38 U.S.C. § 7264 et. seq. (2018); 38 C.F.R. § 20.104 (2020).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran was a member of the United States Air Force/Air National Guard, which included a period of initial active duty training (IADT) from April to July 2010.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a determination by the education center located at a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in February 2020. A transcript of the hearing testimony is of record. In April 2020, the Board issued a decision denying the Veteran's appeal. The Appellant appealed the Board decision to the Court. In June 2021, the Court granted a Motion to Terminate the issue of entitlement to education benefits under Chapter 33, Title 38, United States Code. The Court also granted a Joint Motion for Partial Remand (JMPR) with respect to the issues of entitlement to education benefits under VRAP and entitlement to work-study education benefits, finding that the work-study education benefits issue was inextricably intertwined with the Motion to Terminate Chapter 33 education benefits. The case is once again before the Board.

Chapter 33 Education Benefits 

As noted, in May 2021, the Court issued a Joint Motion to Terminate the Appeal in Part of an April 2020 Board decision with respect to entitlement to Chapter 33 education benefits. Vet. App. No. 20-5531 (May 25, 2021). This motion states that the Appellant and the Appellee (through the General Counsel) agreed to and move for termination of this aspect of the appeal pursuant to U.S. Vet. App. Rules 27 and 42. The terms upon which the parties agreed were contained in an attached Stipulated Agreement, which notes that the Appellee agreed to promptly notify the Veterans Benefits Administration with respect to the agreement and the Appellant agreed that her pending appeal as to entitlement to Chapter 33 education benefits shall be terminated with prejudice, as addressed in the April 2020 Board decision.

The Court has held that, when the Secretary of Veterans Affairs enters into such an agreement, the Board decision giving rise to the appeal is overridden, thereby mooting the case or controversy. Bond v. Derwinski, 2 Vet. App. 376 (1992). See also Kimberly-Clark v. Proctor & Gamble, 973 F.2d 911, 914 (Fed. Cir. 1992) ("Generally, settlement of a dispute does render a case moot."); cf. 38 C.F.R. § 14.500(a),(c),(d).

The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. As this appeal is now moot, there remain no allegations of errors of fact or law for appellate consideration with respect to this matter by the Board. As the Board does not have jurisdiction to review this claim, it must be dismissed.

REASONS FOR REMAND

The parties agreed in the JMPR that in denying the appellant VRAP benefits for her enrollment at Old Dominion University (ODU) from January 2014 to May 2014 on the basis that ODU is not a community college or technical school, the Board did not consider and apply the provisions set out in Lacey v. Wilkie, 32 Vet. App. 71 (2019). In this regard, the Court in Lacey found that entitlement to VRAP benefits for courses offered at a four-year college is possible if the courses are shown to be offered by a community college or technical school. The parties also agreed that, in finding that VA had no authority to award education benefits after March 31, 2014, which is when the VRAP program ended, the Board did not consider and make factual findings pursuant to Welcome v. Wilkie, 33 Vet. App. 77 (2020), which held that there is no absolute bar to awarding VRAP benefits after March 31, 2014. 

In June 2021, the Board notified the Veteran of the Court decision, and afforded her the opportunity to submit additional evidence. She thereafter submitted additional evidence in support of the appeal in September 2021, and she requested that the case be Remanded to the Agency of Original Jurisdiction (AOJ) for initial review of the additional evidence. The Board may not consider additional evidence not previously reviewed by the AOJ, unless a waiver of initial AOJ review is obtained from the Veteran. See Disabled American Veterans, et. al. v. Secretary of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003); 38 C.F.R. § 20.1305(c). Since the Appellant does not want to waive AOJ review, a remand is necessary for AOJ adjudication.

Regarding the Veteran's claim for work-study education benefits, the Stipulated Agreement which is part of the Joint Motion to Terminate Chapter 33 education benefits notes that the Appellee agreed to grant Appellant entitlement to education benefits under 38 U.S.C. § 3311 (Chapter 33 education benefits). The agreement also states that the parties would make no agreement regarding the amount or duration of these education benefits under 38 U.S.C. §§ 3312 and 3313 but agreed that those issues shall be matters for initial adjudication by the AOJ, subject to the right to appeal. Accordingly, as the Appellant's claim for work-study was found to be inextricably intertwined with the issue of entitlement to education benefits under 38 U.S.C. § 3311, it must be deferred pending the AOJ's initial determination regarding the amount and duration of Chapter 33 education benefits.

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The matters are REMANDED for the following action:

Readjudicate the claims on appeal based on the entirety of the evidence, to include consideration of all evidence added to the file since issuance of the May 2017 SOC, to specifically include the evidence submitted by the Appellant in June 2021. If any benefit sought on appeal is denied, furnish to the Appellant and her representative a SSOC.

 

 

J. PARKER

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.