Citation Nr: 21032257 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 19-28 964 DATE: May 26, 2021 REMANDED The claim of entitlement to a monthly housing allowance under Chapter 33, Title 38, United States Code (known as the Post-9/11 GI Bill) in excess of $1673.00 per month for the periods running from July 9 through September 30, 2018, from October 1, through December 23, 2018, and from December 24, 2018, through March 17, 2019, to include whether the Veteran is entitled to a monthly housing allowance in any amount, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1997 to October 2017. This appeal to the Board of Veterans' Appeals (Board) arose from various decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, informing the Veteran that he was entitled to benefits for an approved program of education or training under the Post-9/11 GI Bill, to include payment of a monthly housing allowance. Specifically, for the Veteran's periods of schooling at Northcentral University running from July 9 through September 30, 2018, from October 1, through December 23, 2018, and from December 24, 2018, through March 17, 2019, the RO determined that the Veteran was eligible for a monthly housing allowance in the amount of $1,673.00 for each full month of training. The monthly housing allowance amount was calculated based on Northcentral University being an online university with a physical address in Arizona. The Veteran disagreed with the payment rate of his monthly housing allowance for these periods of schooling, noting that although Northcentral University had a physical address in Arizona, he did not attend any classes in Arizona. Rather, he reported that he was fulfilling his required internship hours in San Diego, California, and argued that his monthly housing allowance should be based on the location of his coursework, and not on the physical location of the university. The issue of entitlement to a monthly housing allowance under Chapter 33 in excess of $1673.00 per month for the periods in question was then before the Board in December 2019 at which time it was remanded for further development. Specifically, the Board instructed the agency of original jurisdiction (AOJ) to request that the VA Education Liaison Representative (ELR) at the San Diego RO review certain information provided by Northcentral University regarding the Veteran's practicum and internship requirements and determine whether, based on the information provided, the Veteran was entitled to payment of the monthly housing allowance rate applicable to San Diego, California, for the periods of time in which he was participating in these activities. Pursuant to the terms of the Board's remand, the ELR at the San Diego RO was contacted in August 2020. The ELR was requested to review the information provided by Northcentral University and to then provide a narrative response as to whether the Veteran's attendance was correctly certified for the periods from July 9 through September 30, 2018, from October 1, through December 23, 2018, and from December 24, 2018, through March 17, 2019, through the Scottsdale, Arizona location of Northcentral University and for the period from March 18 through July 7, 2019, through the San Diego, California location. In September 2020, the Supervisory Education Compliance Survey Specialist (SECSS) responded, stating that Northcentral University had incorrectly certified the Veteran's enrollments from April 9, through July 1, 2018, from July 9 through September 30, 2018, from October 1, through December 23, 2018, and from December 24, 2018, through March 17, 2019. The SECSS stated that "[a]ll four certifications were for enrollments in a program that was not and could not be approved by the Arizona State Approving Agent because the location of the internship was not within the State of Arizona" and, therefore, "VA incorrectly paid these certifications at no fault of the student." Based on the response received from the SECSS, action was taken to retroactively terminate the Veteran's receipt of Post-9/11 GI Bill benefits for the above-listed enrollment periods, which action resulted in an overpayment of Post-9/11 GI Bill benefits, to include the Veteran's monthly housing allowance for the periods in question. The Veteran was informed of the corrective action taken via letter dated in September 2020; it was stated, however, that because the Veteran was not at fault in the creation of the debt, he would not be held liable for repayment of such. Then, in October 2020, the RO issued a supplemental statement of the case (SSOC) in which the RO addressed the validity of the monthly housing allowance payment and found that a monthly housing allowance was not payable to the Veteran for the terms running between April 9, 2018, and March 17, 2019. The RO then determined that the issue of entitlement to a monthly housing allowance in excess of $1673.00 per month for the periods running from July 9 through September 30, 2018, from October 1, through December 23, 2018, and from December 24, 2018, through March 17, 2019, was moot because the ELR found that Northcentral University located in Arizona did not have jurisdiction to certify the enrollments takes in California. In response to the SSOC, the Veteran disagreed that the terms at issue were not properly certified, asserting that it was the ELR who had initially approved the curriculum. The Veteran also stated that his program of study was that of "Master of Arts in Marriage (MFT) and Family Therapy with California Licensure" and that the curriculum specifically addressed California requirements for a Master of Arts in MFT. Further, the Veteran continued to express his belief that he was entitled to a monthly housing allowance for the periods in question at the rate payable for San Diego, California. Upon review of the evidence, that Board cannot conclude, as did the RO, that the issue of entitlement to a monthly housing allowance in excess of $1673.00 per month for the periods running from July 9 through September 30, 2018, from October 1, through December 23, 2018, and from December 24, 2018, through March 17, 2019, is moot, as it does not appear that the stated reason for termination of benefits is supported by the law cited. Additionally, given the actions undertaken on remand, to include retroactively terminating the Veteran's entitlement to Post-9/11 GI Bill benefits, and in light of the Veteran's response to the SSOC, the Board finds that the current appeal now encompasses the matter of whether the Veteran was in fact entitled to any monthly housing allowance for the periods in question. Notably, in concluding that the Veteran's enrollments were improperly certified, the SECSS and the RO cited only to that portion of 38 C.F.R. § 21.4151(b) that provides that state approving agencies are responsible for "[i]nspecting and supervising schools withing the borders of their respective states." (Parenthetically, the Board notes that the ERL and RO indicated that the regulation at issue was 38 C.F.R. § 21.2151(b). As that regulation does not exist, the Board assumes that the SECSS and RO intended to site to 38 C.F.R. § 21.4151(b), as that regulation contains the text referred to by the SECSS and RO.) The Board cannot, however, conclude that the regulation cited by the SECSS and RO supports the conclusion that the Veteran was not entitled to Chapter 33 educational assistance benefits for his internship/practicum simply because that internship was not pursued in Arizona. Indeed, 38 C.F.R. § 21.4265(f) provides that "off-campus job experience included in a school course, variously described by schools as internship, residency, practicum, externships, et cetera, may be included as part of a cooperative program when the course meet the requirements of [38 C.F.R.] § 4233(a)." However, such off-campus courses may be considered as resident institutional training only if certain conditions are met. 38 C.F.R. § 21.4265(f)(2). In this regard, the Board notes that the RO had previously confirmed with the SECSS that during the terms in question, the Veteran was participating in what qualified as "resident courses." Despite this, neither the SECSS nor the RO has engaged in any discussion as to why, if the Veteran was participating in what qualified as "resident courses," he would not be entitled to a monthly housing allowance simply because the internship hours were completed outside of Arizona. The Board also points out the Northcentral University has certified that the Veteran's internship was required training that was necessary for completion of his degree, and that the internship had been approved by the parent institution. Given that the internship in San Diego, California, was approved by Northcentral University in Arizona and was approved as resident hours by the SECSS, it is unclear to the Board why a housing allowance was not payable. The Board also points out that it was the school certifying official (SCO) and not the state approving agency (SAA) that certified the Veteran's enrollment for the terms in question. As such, the Board cannot conclude that 38 C.F.R. § 21.4151(b) is controlling in this case. Further, as discussed in the December 2019 remand, the monthly housing allowance is the same as the military Basic Allowance for Housing (BAH) for an E5 with dependents. The law previously provided that the monthly housing allowance was to be based on the ZIP code for institution of higher learning. 38 U.S.C. § 3313(c)(1)(B). However, the Colmery Act, also known as the Forever GI Bill, enacted August 16, 2017, amended 38 U.S.C. § 3313. See The Harry W. Colmery Veterans Educational Assistance Act of 2017, Pub. L. 115-48, § 107, 131 Stat. 977 (2017). Under the current law, 38 U.S.C. § 3313(c) provides that for programs of education leading to a degree pursued at institutions of higher learning on more than a half-time basis a monthly housing stipend equal to the product of the monthly amount of the basic allowance for housing payable under section 403 of title 37 for a member with dependents in pay grade E5 residing in the military housing area that encompasses all or the majority portion of the ZIP code area in which is located the campus of the institution of higher learning where the individual physically participates in a majority of classes. 38 U.S.C. § 1333(c)(1)(B)(i). It is under this change in law that the Veteran believes he is entitled to the monthly housing allowance applicable to San Diego, California. In this regard, the Board notes the SECSS and the RO cited to a VA document that addresses frequently asked questions concerning Section 107 of the Colmery Act. In response to whether off-campus trainings are impacted by Section 107, it is stated that "[e]nrollments that include off-campus training (including internships, practicums, externships, clinical rotations, and residencies), should be certified to the location of the campus where the student is enrolled, as long as the 'off-campus training site'" does not meet VA's campus definition requirements." https://www.benefits.va.gov/gibill/docs/fgib/fgib_stakeholder_faqs.pdf. Notably, there does not appear to be a caveat placed on such off-campus enrollments that they must occur in the same state as the location of the campus where the student is enrolled. In light of the above, the Board finds it necessary to again remand the matter for the agency of original jurisdiction (AOJ) provide a detailed analysis of whether the Veteran is entitled to a monthly housing allowance for the periods running from July 9 through September 30, 2018, from October 1, through December 23, 2018, and from December 24, 2018, through March 17, 2019. As part of that analysis, the AOJ must explain the process for certifying off-campus courses, to include internships. The AOJ must also explain why, if such off-campus courses have been approved as resident institutional training, they would not qualify for educational assistance benefits unde the Post-9/11 GI Bill if they are taken in different state than the certifying institution. If the AOJ determines that the Veteran was in fact entitled to Post-9/11 GI Bill benefits for the enrollment periods in question, the AOJ must readjudicate whether a monthly housing allowance in excess of $1673.00 per month for the periods in question is warranted. Corrective actions regarding payment of benefits and debt creation should also be undertaken. The matter is REMANDED for the following action: Provide a detailed analysis of whether the Veteran is entitled to a monthly housing allowance for the periods running from July 9 through September 30, 2018, from October 1, through December 23, 2018, and from December 24, 2018, through March 17, 2019. (The ERL and/or SECSS should be consulted if required or necessary.) Citation to only 38 C.F.R. § 21.4151(b) to support the conclusion that the Veteran was not entitled to Post-9/11 GI Bill benefits for the periods in question as those enrollments were erroneously certified is not sufficient. Rather, the AOJ must set forth, in detail, the process for certifying off-campus courses, such as internships, that occur in a state different from that of the campus where the student is enrolled, especially when such internships are required as part of a degree program. Specifically, the AOJ must provide law to support a conclusion that internships approved as resident institutional training must occur in the same state as the campus where the student is enrolled in order to qualify for Chapter 33 educational assistance benefits. If the AOJ determines that the Veteran was in fact entitled to Post-9/11 GI Bill benefits for the enrollment periods in question, the AOJ must readjudicate whether a monthly housing allowance in excess of $1673.00 per month for the periods in question is warranted. Corrective actions regarding payment of benefits and debt creation should also be undertaken. K. Conner 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.