Citation Nr: 22015302 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 18-45 313 DATE: March 17, 2022 ORDER Entitlement to restoration of educational assistance benefits under Chapter 33, Title 38, United States Code (known as the Post-9/11 GI Bill), is denied. FINDING OF FACT WyoTech-Fremont's approval was withdrawn by the State Approving Agency prior to January 1, 2015, and the Veteran was not enrolled at WyoTech-Fremont on or after January 1, 2015. CONCLUSION OF LAW The criteria for restoration of Post-9/11 GI Bill educational assistance benefits have not been met. 38 U.S.C. § 3699. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 2006 to April 2011. This appeal before the Board of Veterans' Appeals (Board) arose from a June 2016 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, in which the RO denied entitlement to restoration of VA educational assistance benefits under the Post-9/11 GI Bill, which benefits were used during the period from August 21, 2012, to September 10, 2014. The Veteran filed a notice of disagreement as to the denial the following month and a statement of the case (SOC) was issued in August 2018. The Veteran thereafter timely filed a VA Form 9, Appeal to Board of Veterans' Appeals, in September 2018. The Board notes that there is some confusion regarding the nature of the Veteran's claim in that the agency of original jurisdiction (AOJ) indicated in a July 2018 congressional inquiry response that the Veteran was seeking restoration of Veteran Readiness and Employment (VR&E) (formerly known as Vocational Rehabilitation and Employment) benefits. The record also shows that the Veteran has variously elected to use Post-9/11 GI Bill and VR&E benefits in pursuit of his educational and professional goals. However, and as will be discussed in further detail below, it is clear from the evidence of record that appeal currently before the Board involves the issue of entitlement to restoration of Post-9/11 GI Bill benefits due to the closure of WyoTech-Fremont. The record also shows that in July 2021, the RO issued a decision in which it denied entitlement to additional VR&E benefits. In September 2021, the Veteran filed a VA Form 20-0996, Decision Review Request: Higher-Level Review, as to the July 2021 rating decision. In December 2021, the RO issued the Higher-Level Review decision. To date, the Veteran has not taken any action in response to the Higher-Level Review decision. As the issue of entitlement to additional VR&E benefits was adjudicated under the AMA and has not yet been appealed to the Board, any issue regarding entitlement to additional VR&E benefits is not before the Board as part of the current appeal. Restoration of Chapter 33 Educational Assistance Benefits A review of the record shows that in July 2011, the Veteran was issued a "Certificate of Eligibility" in which it was certified that he was entitled to benefits for an approved program of education of training under the Post-9/11 GI Bill. It was stated that he was entitled to receive 100 percent of the benefits payable and that he had 36 months of full-time benefits to use until April 12, 2026. The record then shows that the Veteran enrolled in an undergraduate degree program at Bellevue College beginning in September 2011. The Veteran withdrew from Bellevue College, effective May 17, 2012. The Veteran then enrolled at WyoTech, a for-profit technical institute, in Fremont, California, in August 2012. Specifically, he was enrolled in a non-college degree motorcycle technician program. In August 2012, WyoTech-Fremont certified that the Veteran was enrolled in 9 resident credit hours for the following periods: August 21 to October 5, 2012; October 9 to November 19, 2012; November 20, 2012, to January 11, 2013; January 15 to February 27, 2013; February 27 to April 17, 2013; April 22 to June 3, 2013; June 4 to July 22, 2013; and from July 24 to September 4, 2013. In August 2013, WyoTech-Fremont certified that the Veteran was enrolled for 9 resident credit hours for the period from September 5 to October 18, 2013, and for 9 resident credit hours for the period from October 22 to December 4, 2013. In November 2013, WyoTech-Fremont certified that the Veteran was enrolled in 9 resident credit hours for the periods from December 5, 2013, to January 27, 2014, and from January 29 to March 12, 2014. In February 2014, WyoTech-Fremont certified that the Veteran was enrolled for 9 resident credit hours for the periods from March 13 to April 25, 2014, and from April 30 to June 11, 2014. Lastly, in May 2014, WyoTech-Fremont certified that the Veteran was enrolled for 9 resident credit hours from June 16 to July 28, 2014, and from July 30 to September 10, 2014. The evidence then shows that in July 2014, Las Positas College in Livermore, California, certified that the Veteran was enrolled for 18 distance credit hours for the period from August 18 to December 19, 2014. However, after this enrollment was certified, the Veteran switched to using Chapter 31 benefits, effective August 18, 2014. Notably, the record does not contain a request for change of program or place of training showing that the Veteran requested to switch his place of training from WyoTech-Fremont to Las Positas College. However, on September 16, 2014, WyoTech-Fremont certified that the Veteran's end of course was September 10, 2014, and that the last date any credits accrued was September 10, 2014. Thus, it would appear that there was some overlap in the Veteran's training and that he was enrolled simultaneously at WyoTech-Fremont and Las Positas College. In June 2018, the Veteran filed a VA Form 22-0989, Education Benefit Entitlement Restoration Request Due to School Closure of Withdrawal, in which he requested restoration of Post-9/11 BI Bill benefits due to the withdrawal of approval and subsequent closure of WyoTech-Fremont. Specifically, the Veteran reported that he enrolled in a motorcycle technician program at WyoTech-Fremont in order to gain a marketable skill as a way to later support himself while he pursued a Physician Assistant degree. The Veteran noted that WyoTech-Fremont lost its approval in August 2014 and later closed, which he stated made the certificate earned through that school worthless. He thus requested restoration of the Post-9/11 GI Bill benefits used for the program of study at WyoTech-Freemont. Relevant to the instant case, the Colmery Act, also known as the Forever GI Bill, enacted August 16, 2017, amended Title 38, Chapter 36, to provide for restoration of certain Post-9/11 GI Bill educational assistance benefits for individuals affected by closures of educational institutions. See The Harry W. Colmery Veterans Educational Assistance Act of 2017, Pub. L. 115-48, § 109, 131 Stat. 977 (2017); see also 38 U.S.C. § 3699 (providing that payment of educational assistance shall not be charged against any entitlement to educational assistance of the individual concerned if the Secretary determined that the individual was unable to complete such course or program as a result of the closure of the educational institution). The amendment made to Title 38, Chapter 36, was to "take effect on the date that is 90 days after the date of the enactment of [the Colmery Act], and shall apply with respect to courses and programs of education discontinued as described in section 3699 of title 38, United States Code, as added by subsection (a)(1), after January 1, 2015." See Pub. L. 115-48, § 109 at 8; see also 38 U.S.C. § 3699, Notes. By way of background, the amendment made to Title 38, Chapter 36, was in response to the unexpected closures of Corinthian Colleges, of which WyoTech was a subsidiary, and ITT Technical Institute , two for-profit educational institutions. The closure of these institutions on April 27, 2015, and September 6, 2016, respectively, adversely affected thousands of student veterans in that many students found that their credits would not transfer to other colleges. In essence, these veterans had wasted Post-9/11 GI Bill benefits obtaining credits that were not transferable and did not lead to a degree, and there was no recourse for them to be able to recoup their benefits. As explained in the House Committee Report accompanying the bill (H.R. 3218), the amendment to Title 38, Chapter 36, was to "ensur[e] that veterans affected by the ITT Tech and Corinthian closures, would receive full entitlement back for any credits they were unable to transfer to another school." Report of the Committee on Veterans' Affairs, to accompany H.R. 3218, 115th Cong., 1st Sess., 35. The amendment "would also ensure that, going forward, any veterans affected by a school closure would receive entitlement back for that semester they are enrolled in when the school closes, as well as a bridge payment of up to 4 months' worth of housing allowances." Id. Here, the evidence shows that the Veteran was enrolled at WyoTech, a subsidiary of Corinthian Colleges, Inc. However, the Veteran not enrolled at WyoTech on the date of its closure on April 27, 2015. Indeed, WyoTech certified that the last date credits were earned was on September 10, 2014. This is prior to the effective date of the enactment of 38 U.S.C. § 3699. Accordingly, because the Veteran was not enrolled at WyoTech on or after January 1, 2015, and at the time that it closed, he is not entitled to restoration of Post-9/11 GI Bill benefits used to pursue a course of training at WyoTech prior to January 1, 2015, pursuant to the provisions of 38 U.S.C. § 3699. The Board has also considered that, according to a VA Form 22-1998, also known as the Web Enabled Approval Management System (WEAMS) Report, WyoTech Freemont's approval was withdrawn by the State Approving Agency, effective August 14, 2014. Although it appears that the Veteran was enrolled at WyoTech-Freemont for a period after the school's approval was withdrawn, because the approval was withdrawn prior to January 1, 2015, the provisions of 38 U.S.C. § 3699 governing restoration of Post-9/11 GI Bill benefits due to disapproval of a course do not apply in this case. See 38 U.S.C. § 3699, Notes (providing that the provisions of 38 U.S.C. § 3699 shall apply with respect to courses and programs of education discontinued after January 1, 2015). The Board is sympathetic to the Veteran's position and commends the Veteran on his continued educational pursuits. However, the governing law is clear and specific, and the Board is bound by the laws and regulations that apply to veterans' benefits claims. 38 U.S.C. § 7104(c); 38 C.F.R. §§ 19.5, 20.101(a). Here, because the Veteran was not enrolled at WyoTech on or after January 1, 2015, and because WyoTech lost its approval prior to that date, the Veteran has no legal entitlement to restoration of Post-9/11 GI Bill benefits due to the disapproval and/or closure of WyoTech-Fremont. As such, the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 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.