Piotrowski v. Brown

9 Vet. App. 215, 1996 U.S. Vet. App. LEXIS 405, 1996 WL 360397
United States Court of Appeals for Veterans Claims·Decided June 28, 1996·No. No. 94-833·Published

Opinions

FARLEY, Judge, filed the opinion of the Court. STEINBERG, Judge, filed a concurring opinion.

FARLEY, Judge.

This is an appeal from a March 30, 1994, decision of the Board of Veterans’ Appeals (BVA or Board) which held that the appellant was not entitled to educational assistance benefits under chapter 30 of title 38, U.S.Code. This appeal is timely and the Court has jurisdiction pursuant to 38 U.S.C. § 7252(a). For the reasons that follow, the Court will affirm the BVA decision.

I.

The appellant served in the U.S. Army from June 1961 until July 1989. Record (R.) at 14. He filed an application for educational benefits in November 1989 in order to attend the Fahrni School of Real Estate in Aiea, Hawaii. R. at 19-20. Although the application the appellant submitted was on a form relating to chapter 34 educational benefits, a handwritten notation on the application stated that the appellant was “claiming chapter 30” benefits. R. at 19. In a letter to the appellant with an illegible date, the Muskogee, Oklahoma, regional office (RO) denied his claim, stating:

[The Fahrni School of Real Estate] is not approved for veterans benefits at the present time.
If the school ... has already applied for approval for this course, we will process your request as soon as we receive a Notice of Approval.
If the school ... has not applied for approval and wishes to do so, it may apply with the State Approving Agency shown below.

R. at 16. At the bottom of the letter, it was typewritten “STATE APPROVING AGENCY,” and below that, “Hawaii.” R. at 17.

In April 1990, the appellant requested “reconsideration” of this decision, stating that he had checked a box on his application indicating that he desired counseling but that none was provided, and that “[s]uch counseling would have informed me that not all Hawaii Real Estate Commission Accredited Schools are VA approved ..., an assumption I made in lieu of other information.” R. at 24. He also stated that he had already paid his tuition and begun the course by the time he received the VA letter, and that “Real Estate Schools in Hawaii are closely controlled and accredited by the State R/E Commission [in accordance with] State law. Approval by the VA is redundant, administratively cumbersome, and would appear to be unnecessary.” Ibid.

A counseling session was held in April 1990. R. at 35. In May 1990, the Muskogee RO sent another letter to the appellant stating that the Fahrni School was not approved for veterans’ benefits purposes, and that “[t]hey must apply for approval. We can not pay benefits unless we have received a Notice of Approval for the school.... You are qualified for Chapter 30 benefits. The only problem is the approval of Fahrhi [sic] School of Real Estate.” R. at 37. The appellant filed a Notice of Disagreement on May 24,1990. R. at 39.

At an August 1990 hearing at the Honolulu RO, the appellant reiterated his statements that, when he filed his application, he was unaware that the Fahrni School was not approved for veterans’ benefits purposes and that VA approval is redundant of Hawaii’s accreditation process. R. at 49. He also stated:

After I found out [that] the school should have gone through some certification I talked to the people at the school.... [Mr. Fahrni] said, “The damn VA paper work is a pain in the butt”_ He says, “Why should I go through [the VA certification process], the State certifies me”.... “I’d started the course before I knew that I couldn’t get paid by the VA. I’d just assumed that since it was a state certified school, that it was acceptable. But the real contention is, that I had already taken the State Board Exam, passed the State [217]*217Board Exam, and had been licensed by the State of Hawaii to practice as a salesman, so I see no reason why the VA can’t make an exception at some level in the system to pay me this small amount....”

R. at 50. In June 1991, the BVA remanded the appellant’s claim to the originating agency, instructing it to “document and place in the file a copy of the material it relied on in finding [that] the course of study at Fahrni School of Real Estate is not approved by the State approving agency” and to then issue an adequate Supplemental Statement of the Case (SSOC). R. at 76-77.

The Muskogee RO issued a SSOC in August 1991, apparently without complying with the first BVA instruction on remand (Supplemental (Suppl.) R. at 3-7), so the BVA remanded the claim again (Suppl.R. at 15). A July 16, 1992, “REPORT of contact” from a VA official at the Muskogee RO stated that he had called a VA official at the Honolulu RO requesting any written information from the Fahrni School regarding their approval for veterans’ benefits purposes, and that the Honolulu official responded that none was found, but that he would check with the State approving agency. Suppl.R. at 31. The Honolulu official later replied, “Our [State approving agency] has not had any approval request from this school.” Suppl.R. at 30.

In December 1992, the BVA remanded the appellant’s claim a third time, stating that the RO had still not complied with the remand instructions, and stated:

The Muskogee [RO] should obtain and incorporate into the veteran’s Chapter 30 file folder documentation from the appropriate State approving agency indicating what schools are approved for pursuit of a license in real estate. If the VA is acting as the State approving agency in this instance ..., the [RO] should indicate that in its documentation.

Suppl.R. at 43. In a March 18, 1993, letter, the Coordinator of the Hawaii State Postsec-ondary Education Commission (SPEC) stated, “According to our records from 1987 to present, [the] Fahrni School of Real Estate is not a recognized or approved school for VA educational remuneration purposes. In addition, this office is not aware of any submission by Fahrni School of Real Estate for appropriate recognition by this office....” SuppLR. at 47. The SPEC Coordinator also enclosed a list of schools approved for veterans’ educational benefits as of February 1993, which did not include the Fahrni School. Suppl.R. at 48-51.

A BVA hearing was held in September 1993, and the appellant again stated that Hawaii has an accreditation system for real estate schools, suggesting that there is no need for VA to separately accredit schools for educational benefits purposes. R. at 106. In March 1994, the BVA found that the appellant’s claim for reimbursement of his costs for attending the Fahrni School under chapter 30 was not well grounded. R. at 5. The Board stated:

The veteran requests that the VA act as the approving agency in his case. However, the State of Hawaii has established an approving agency, and the type of training the veteran received did not fit into one of the categories of training for which the VA acts as an approving agency. The Board recognizes that the veteran had already paid his tuition before he received notice of the disallowance of his claim, but in view of the applicable law, no discretion is provided to the Board and the veteran’s claim must be denied as not well-grounded because there is not a basis upon which to grant Chapter 30 benefits.

R. at 8.

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Piotrowski v. Brown, 9 Vet. App. 215, 1996 U.S. Vet. App. LEXIS 405, 1996 WL 360397 (Cal. 1996).

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