Citation Nr: 21013334 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-11 043 DATE: March 9, 2021 ORDER Entitlement to payment of Dependents’ Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code, for C.A.’s attendance at the Universidad de Granada in Spain is denied. Entitlement to payment of DEA benefits under Chapter 35, Title 38, United States Code, for J.A. III’s attendance at the Universidad de Granada in Spain is denied. FINDING OF FACT The Universidad de Granada in Spain is not an educational institution approved by VA; thus, DEA benefits cannot be awarded based on attendance at this institution. CONCLUSIONS OF LAW 1. The criteria for entitlement to payment of DEA benefits under Chapter 35, Title 38, United States Code, for C.A.’s attendance at the Universidad de Granada in Spain have not been met. 2. The criteria for entitlement to payment of DEA benefits under Chapter 35, Title 38, United States Code, for J.A. III’s attendance at the Universidad de Granada in Spain have not been met. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from July 1980 to June 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2013 decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a Board hearing in his March 2016 VA Form 9. However, in March 2016, the Veteran withdrew his request for a hearing. In March 2019, this matter was remanded for additional development. The Veteran has another appeal before the Board. Because that appeal involves an issue dependent on completely different law and facts, it is the subject of a separate decision. Entitlement to payment of DEA benefits under Chapter 35, Title 38, United States Code, for J.A. III and C.A. based on their attendance at the Universidad de Granada in Spain. The Veteran is seeking payment of DEA benefits for J.A. III and C.A. based on their attendance at the Universidad de Granada in Spain. As an initial matter, a December 2008 rating decision established the Veteran’s basic eligibility for DEA benefits, effective December 4, 2008. In addition, VA has previously recognized J.A. III and C.A. as the Veteran’s children. See March 2007 VA notification letter listing J.A. III and C.A. as the Veteran’s dependent children. Therefore, they are eligible persons under Chapter 35, Title 38, United States Code. 38 C.F.R. § 21.3021(a)(1). Thus, the relevant question in this case is whether the Universidad de Granada in Spain is an approved institution or program for VA purposes. DEA benefits may be paid for an eligible person 38 C.F.R. § 21.3021 who is pursuing a program of education or special restorative training. 38 C.F.R. § 21.3020(a). A course to be pursued at a school not located in a State or in the Philippines may not be approved except under the circumstances outlined in 38 C.F.R. § 21.4260, applicable to courses in foreign countries. Under 38 C.F.R. § 21.4260(a), a postsecondary course offered in a foreign country must meet all of the following criteria to be approved: (1) the educational institution offering the course is an institution of higher learning, and (2) the course leads to a standard college degree or its equivalent. A degree is the equivalent of a standard college degree when the program leading to the degree has the same entrance requirements as one leading to a degree granted by a public degree-granting institution of higher learning in that country. 38 C.F.R. § 21.4260(a)(ii)(2). Notably, however, a claimant who is eligible for educational assistance benefits shall receive such benefits while enrolled in a course of education offered by an educational institution only if such course is approved in accordance with the provisions of Chapter 36 of Title 38, United States Code. 38 U.S.C. § 3483. A program of education is deemed to be approved if a State approving agency, or the Secretary when acting in the role of a State approving agency, determines that the program is, among other things, an accredited standard college degree program at a public or not-for-profit proprietary educational institution that is accredited by an agency or association recognized for that purpose by the Secretary of Education. 38 U.S.C. § 3672(b)(2)(A). The Secretary or a state approving agency may approve accredited programs offered by proprietary for-profit educational institutions when such courses have been accredited by a nationally recognized accrediting agency or association. 38 U.S.C. § 3675. VA maintains a list of all approved institutions and programs. See VA Web Enhanced Approval Management System (WEAMS), the searchable database listing all organizations and programs of education approved for VA purposes. The Board’s review of WEAMS indicates that Universidad de Grenada in Spain is not an educational institution approved by VA. In addition, in June 2020, the Agency of Original Jurisdiction (AOJ) determined that the Universidad de Grenada in Spain has never requested to be approved for VA education benefits. Therefore, the claim must be denied. However, the Board notes that nothing in this decision prevents the Veteran from seeking to have the Universidad de Grenada in Spain approved for VA purposes by completing VA Form 22-0976, Application for Approval of a Program in a Foreign Country, and submitting the completed form via email to federal.approvals.va.gov. See Foreign Program Approval Information for Schools, benefits.va.gov/gibill/foreign_program_approval_information_for_schools.asp (last accessed on March 3, 2012). Further information on using VA education benefits at foreign institutions can be found on VA’s website, specifically at www.va.gov/education/about-gi-bill-beneifts/how-to-use-benefits/study-at-foreign-schools/. For these reasons, there is no legal basis upon which to grant entitlement to payment of DEA benefits under Chapter 35, Title 38, United States Code, for C.A.’s and J.A. III’s attendance at the Universidad de Granada in Spain. The Board sympathizes with the Veteran regarding the inequities he believes result from not being entitled to those dependents education benefits. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Thomas, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED