Tallman v. Brown

7 Vet. App. 453, 1995 U.S. Vet. App. LEXIS 216, 1995 WL 114734
CourtUnited States Court of Appeals for Veterans Claims
DecidedMarch 17, 1995
DocketNos. 92-1506, 93-49
StatusPublished
Cited by43 cases

This text of 7 Vet. App. 453 (Tallman v. Brown) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tallman v. Brown, 7 Vet. App. 453, 1995 U.S. Vet. App. LEXIS 216, 1995 WL 114734 (Cal. 1995).

Opinion

FARLEY, Judge:

Appellants Wade C. Tallman and Craig M. Diffie, both 1978 graduates of the United States Naval Academy, appeal from decisions of the Board of Veterans’ Appeals (BVA or Board) dated November 17, 1992, and September 25, 1992, respectively, which denied entitlement to payment of educational assistance benefits under Public Law 101-366, Title II, § 207, 104 Stat. 442 (Aug. 15, 1990), as amended by Public Law 102-83, § 5(c)(2), 105 Stat. 406 (Aug. 6, 1991) (currently found at 38 U.S.C. § 3222 note). (For ease of reference, this statute will be referred to hereinafter as section 207 or § 207.) Each appellant contends that he is entitled under the provisions of § 207 to educational assistance under chapter 34 of title 38 of the U.S.Code despite his previous receipt of tuition assistance from the Department of the Navy.

By order dated February 28, 1994, the Court, upon a motion by the Secretary, consolidated these two related cases for appellate review. In a decision dated August 22, 1994, this Court reversed the decision of the Board in each of these consolidated appeals. The Board had denied both of the appellants’ claims for educational assistance based upon its conclusion that 38 C.F.R. § 21.4025 (1991) precluded the payment of such assistance where, as in the case of each of the appellants, their military service department had “paid for [their courses] in whole or in part.” 38 C.F.R. § 21.4025(b)(1). In reversing, this Court found that neither the regulation relied upon by the Board, 38 C.F.R. § 21.4025, nor the corresponding statute, 38 U.S.C. § 3681, was applicable to the claims of the appellants, which were governed, not by chapter 34 of title 38, but by a freestanding statute, § 207.

On September 6, 1994, the Secretary filed a motion for reconsideration of the August 22, 1994, panel decision. The essence of the Secretary’s position, which was advanced for [455]*455the first time in his motion for reconsideration, was that 38 C.F.R. §§ 21.4700-.4705, and particularly 38 C.F.R. §§ 21.4703(b) and 21.4704(a), make the limitations of 38 U.S.C. § 3681(a) applicable to the appellants’ claims. Although these regulations were promulgated on December 3, 1992, a date subsequent to each of the BVA decisions on appeal, they, and the interpretation of § 207 contained therein, were proposed on April 21, 1992. See 57 Fed.Reg. 14,488-90 (Apr. 21, 1992). When promulgated, the regulations were made retroactively effective to August 15, 1990. See 57 Fed.Reg. 57,101 (1992). In an order dated September 29, 1994, the motion of the Secretary for reconsideration was granted, the panel decision dated August 22, 1994, was vacated, and the parties were instructed to submit additional briefs. For the reasons set forth below, the Court will affirm both BVA decisions.

I. BACKGROUND

A. Appellant Wade C. Tallman

Appellant Tallman (Tallman) graduated from the United States Naval Academy in June 1978. Record (R.) at 17. He is currently, and since his graduation from the Naval Academy has at all times been, on active duty. After attending the Naval War College in Newport, Rhode Island, Tallman attended Salve Regina College (Salve Regina), where he took three courses which were paid for, in part, through tuition assistance from the Navy. R. at 13-15. Tallman received a Master of Arts (M.A.) degree from Salve Regina in May 1990. R. at 16.

In a letter to a VA regional office (RO) dated November 1991, Tallman noted that because tuition assistance covered only part of the cost of his M.A. coursework, there was an unreimbursed balance of $703.50. R. at 8. He asserted that chapter 34 benefits would have covered the entire amount of his graduate coursework and therefore requested reimbursement for the $703.50 balance. Tall-man attached to his letter a VA Application for Education Benefits, claiming entitlement to such reimbursement under the provisions of newly enacted § 207. R. at 9-11. In December 1991, the RO advised Tallman that his claim had been denied, informing him that “[p]ayment of education assistance is prohibited if a unit or courses are being paid for in whole or in part by the Armed Forces during any period a veteran is on active duty.” R. at 19-20.

In December 1991, Tallman filed a Notice of Disagreement (NOD). The RO provided him with a Statement of the Case (SOC) in April 1992. R. at 22-25. Under “Reasons for Decision,” the SOC stated, “Chapter 34 benefits would not have been payable to the servieeperson at the time he took the courses if he also received Naval Tuition Assistance. The law does not allow payment under § 207 for any training for which Chapter 34 benefits would not have been payable.” R. at 25. Tallman filed a VA Form 1-9 (Appeal to BOARD of Veterans’ Appeals) in May 1992 (R. at 30-31); on the form, he contended: (1) had he been eligible for chapter 34 benefits at the time he was pursuing his master’s program, he would not have elected Navy tuition assistance; (2) had he been eligible for chapter 34 benefits and used them, he would not have had any unreimbursed out-of-pocket expenses; and (3) Congress’ intent in enacting § 207 was to give 1977 and 1978 service academy graduates “their full and justified Veteran Benefits, not to deprive them because of a probably unknown code in the Federal Regulations].” R. at 31.

In its November 17,1992, decision currently on appeal to this Court, the BVA denied Tallman’s claim of entitlement to an award of benefits under § 207. As reasons or bases for its decision, the BVA noted:

The Board observes that 38 C.F.R. § 21.4025(b) (1991) prohibits educational assistance benefits under Chapter 34 for a program which is being paid for in whole or in part by the Armed Forces. Public Law 101-366, Section 207, did not provide more educational assistance benefits to its recipients than to recipients of educational assistance benefits under Chapter 34. In this case, the appellant’s costs of education for his Master’s degree were being paid in part by the Navy. Therefore, the appellant cannot be reimbursed for the difference between the tuition assistance he re[456]*456ceived and the benefits payable to eligible claimants under Chapter 34.
R. at 5-6. A timely appeal to this Court followed.
B. Appellant Craig M. Diffie

Appellant Diffie (Diffie) graduated from the United States Naval Academy in June 1978. R. at 9-10. He is currently, and since his graduation from the Naval Academy has at all times been, on active duty. From May 1988 through March 1990, Diffie attended the University of Southern California (USC). R. at 11-19, 21. He received a Master of Science degree in systems management in March 1990. R. at 23.

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Bluebook (online)
7 Vet. App. 453, 1995 U.S. Vet. App. LEXIS 216, 1995 WL 114734, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tallman-v-brown-cavc-1995.