Citation Nr: 21008335 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 14-09 202A DATE: February 16, 2021 ORDER Entitlement to additional Veterans Retraining Assistance Program (VRAP) benefits for training beginning in January 2013 is denied. FINDING OF FACT The Veteran, who otherwise met the basic eligibility requirements for VRAP benefits, is not shown to have any additional periods of full-time enrollment for training beginning in January 2013. CONCLUSION OF LAW The criteria to establish additional payment of VRAP benefits for training beginning in January 2013 have not been met. 38 U.S.C. § 4100; 38 C.F.R. §§ 21.4270, 21.4272; VOW to Hire Heroes Act of 2011, Pub. L. No. 112-56, 125 Stat. 713, § 211 (Nov. 21, 2011). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1977 to June 1980. This appeal to the Board of Veterans’ Appeals (Board) arose from a January 2013 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. By that decision, the RO notified the Veteran that VA was unable to pay VRAP benefits for schooling that began on January 22, 2013, because he was not then attending school on a full-time basis. The Veteran disagreed with that determination and perfected an appeal to the Board. The Board notes that on his VA Form 9 (Appeal to the Board of Veterans’ Appeals), the Veteran requested a Board videoconference hearing before a Veterans Law Judge. In February 2019, however, the Veteran, through his attorney, withdrew his request for a Board hearing. The instant matter has twice been remanded for further development, the most recent of which occurred in August 2020. In October 2020, the agency of original jurisdiction (AOJ) issued a supplemental statement of the case (SSOC) in which it continued to deny payment of VRAP benefits for training beginning in January 2013. The matter was then returned to the Board for further appellate adjudication. Upon review of the actions undertaken by the agency of original jurisdiction (AOJ) pursuant to the terms of the most recent August 2020 Board remand, the Board is satisfied that there has been substantial compliance with all remand directives, such that the Board may proceed with adjudication of the merits of the claim on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to Continued Payment of VRAP Benefits By way of background, the VRAP was a component of the VOW to Hire Heroes Act of 2011, passed by Congress, and signed into law by the President on November 21, 2011. See Pub. L. No. 112-56, § 211, 125 Stat. 712-715 (2011). The VRAP directed VA, in cooperation with the Department of Labor (DOL), to pay for up to 12 months of a retraining assistance in a “high demand” occupation for unemployed eligible veterans between the ages of 35 and 60 as determined by DOL and VA. Pursuant to Pub. L. No. 112-56, 125 Stat. 713, § 211(k), authority to make payments under VRAP terminated on March 31, 2014. Participants in the VRAP 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). Notably, participants did not receive benefits for any time period during which the training dropped below full-time status. Further, participants must have been enrolled in a VA-approved program of education offered by a community college or technical school, which program must have led to an Associate Degree, Non-College Degree, or a Certificate, and trained the Veteran for a high-demand occupation. A review of the record shows that in July 2012, the Veteran was issued a “Certificate of Eligibility”, certifying that he was entitled to benefits for an approved program of education of training under the VRAP and informing him that he had 12 months of full-time benefits to use before April 1, 2014. VA then received an enrollment certification showing that the Veteran was enrolled full-time in a computer support program at Cedar Valley College for period from August 27, 2012, through December 13, 2012. In December 2012, VA informed the Veteran that based on the enrollment information received from the Cedar Valley College, it had awarded VRAP benefits for that portion of the term that began October 23, 2012, and ended December 13, 2012. VA stated that it could not pay VRAP benefits for training completed from August 27, 2012, through October 22, 2012, because the Veteran’s enrollment for that portion was less than full time. The Veteran did not disagree with this determination. In January 2013, Cedar Valley College submitted an enrollment certification showing that the Veteran was enrolled for 4 credit hours for the term that ran from January 22, 2013, through March 14, 2013, which enrollment was considered to be half time. That same month, VA sent to the Veteran a letter notifying him that VA was unable to pay VRAP benefits for schooling that began on January 22, 2013, because he was not then attending school on a full-time basis. The record then contains an enrollment certification reflecting that the Veteran was enrolled in 4 resident hours for the period from March 25, 2013, through May 16, 2013, which was considered the be three-quarter time. In June 2013, Cedar Valley College submitted an enrollment certification showing that the Veteran was enrolled for 4 resident hours for the term running from June 11, 2013, through August 8, 2013, which enrollment was considered to be full time. That same month, the Veteran was notified that VRAP benefits had been awarded for the term running from June through August 2013. In October 2013, Cedar Valley College submitted an enrollment certification reflecting that the Veteran was enrolled for 4 resident hours for the period from August 26, 2013, through October 16, 2013, which was indicated to be full time; 4 resident hours for the period from August 26, 2013, through October 17, 2013, which was considered to be full time; and 4 resident hours for the period from October 21, 2013, through December 11, 2013, which was considered to be part time. In October 2013, VA approved the payment of VRAP benefits for the period from August 26, 2013, through October 16, 2013. In November 2013, the Veteran filed a notice of disagreement in which he asserted that he had been enrolled at Cedar Valley College full time since January 2013, indicating that he had been enrolled in 12 credit hours each semester, which should be considered full-time enrollment. Notably, the record also contains January and June 2014 letters congratulating the Veteran on his placement on the honor roll for the Fall 2013 and Spring 2014 semesters. In this regard, the Board notes that the letter indicated that “[f]ull-time students who complete at least 12 hours of college-level credit and earn a grade point average of 3.50-3.79 are eligible for this honor roll.” In July 2014, the Student Support Services Dean at Cedar Valley College provided the Veteran with an explanation of how the Computer Information Technology (CIT) program at that institution was structed. Specifically, it was noted that courses in the networking program were offered in 8 week blocks due to the fact that students were encouraged to complete their courses in cohorts. It was indicated that CIT courses were usually 3 or 4 credit-hour courses and that students were encouraged to take up to 2 courses every 8 weeks during the Fall and Spring semesters in order to migrate through his/her degree plan. It was stated that is a student took 2 courses the first 8 weeks of the semester and 2 courses the second 8 weeks, the student would earn up to 12 to 16 credits. In March 2019, the Board remanded the matter for further development. Specifically, the Board noted the Veteran’s assertion that he had been attending Cedar Valley College on a full-time basis for the school term beginning in January 2013, but that he had received VRAP benefits for only a portion of the term. The Board reviewed the evidence of record, noting that the various certifications from Cedar Valley College regarding whether the Veteran was enrolled half time, three-quarter time, or full time were seemingly in conflict with the Veteran’s school transcript that showed that the 2013 terms ran from January 22 to May 16, 2013, when the Veteran completed 10 hours and was considered full time; from June 5 to August 8, 2013, when the Veteran completed 4 hours was considered half time; and from August 26 to December 12, 2013, when the Veteran completed 12 hours and was considered full time. The Board instructed that on remand, the AOJ was to contact the school certifying official at Cedar Valley College to clarify the term length for January 2013 to the present, considering the Veteran’s transcript and the terms certified to VA. It was additionally requested that the school certifying official provide clarification as to how the certifying official determines what classes were or were not in the Veteran’s degree plan and therefore should or should not have been certified to VA. The matter was again remanded in August 2020 to ensure compliance with the terms of the Board’s March 2019 remand. A review of the record shows that the AOJ undertook action to comply with the Board’s remand instruction. E-mail correspondence dated in September 2020 shows a breakdown of how the Veteran’s enrollment terms were reported by Cedar Valley College (now named Dallas College Cedar Valley Campus), to include noting that several courses taken were not in the Veteran’s degree plan. VA’s Education Liaison Representative for Texas then stated that he spoke with A.H., at Cedar Valley College, who certified that all enrollments were accurately reported. A.H. then explained the process for determining if a class was on an individual’s degree plan, which involves verifying that the enrollment matches the program. A.H. also provided a certified copy of the Veteran’s enrollments. The AOJ then provided a complete analysis of its determination that certain enrollment periods did not constitute full-time enrollment in the October 2020 SSOC. In this regard, the Board notes that, for purposes of entitlement to VA educational assistance benefits, “full-time” enrollment in a professional accredited and equivalent program involving standard collegiate courses, including cooperative and external degree programs, is 14 credit 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. In that case, 12 credits hours is full time; 9 through 11 credit hours is three-quarter time; 6 through 8 credit hours if half time; 4 or 5 credit hours is less than half time; and 1 through 3 credit hours is quarter time. Additionally, where a veteran is enrolled in a non-standard term, VA determines the equivalent for full-time training by multiplying the credits to be earned in the term by 18 if credit is granted in semester hours, or by 12 if credit is granted in granted in quarter hours, and then dividing the product by the number of whole weeks in the terms. 38 C.F.R. § 21.4272(g). Applying that formula to the Veteran’s enrollment for 4 hours from January 22, to March 14, 2013, reveals that the equivalent credit hours for the 4-credit course 10.3 (4 x 18 = 72. 72/7 = 10.3), which is considered, for VA purposes, to be three-quarter enrollment. Reviewing the AOJ’s calculations of the Veteran’s equivalent credit hours for his enrollments at Cedar Valley College, as certified by Cedar Valley College, since January 2013, the Board cannot conclude that the AOJ erred in any of its calculations and resulting determinations that the Veteran was enrolled less than full-time for the periods January 22, to March 14, 2013, from June 11 to August 8, 2013, and from October 21 to December 21, 2013. (Parenthetically, the Board notes that VA erroneously paid VRAP benefits for the period from June 11 to August 8, 2013; however, an overpayment was created, resulting in a debt to the Veteran, repayment of which was waived on account of administrative error.) Again, the Board stresses that VRAP program requires “full-time” enrollment, as defined by regulation. Upon review of the evidence of record, the Board finds that payment of any additional VRAP benefits for training beginning in January 2013 must be denied, as the Veteran is not shown to have additional periods of full-time enrollment at Cedar Valley College (now Dallas College Cedar Valley Campus). Although the Board empathizes with the Veteran and is sympathetic to his situation, there simply is no legal basis to find him eligible for additional VRAP benefits for training beginning in January 2013. The Board acknowledges the Veteran’s frustration, especially given the conflicting evidence of record, to include being placed on the Dean’s List, that suggests that he was continuously enrolled full time at Cedar Valley College from January 2013 forward. The Board notes, however, that the payment of VRAP benefits is governed by specific laws and regulations and the Board is without authority to waive VRAP program requirements. Indeed, “full-time” status has a specific definition for purposes of payment of VA benefits, which may differ from that which is considered to full-time for certain awards. The Board is without discretion or authority to grant benefits simply because it might perceive the result to be equitable. See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Accordingly, the Veteran’s claim of entitlement to additional payment of VRAP benefits for training beginning in January 2013 must be denied. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Neilson, 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.