Taylor v. West

11 Vet. App. 436, 1998 U.S. Vet. App. LEXIS 1163, 1998 WL 658277
United States Court of Appeals for Veterans Claims·Decided September 25, 1998·No. No. 96-1572·Published·Cited by 16 cases

Opinions

IVERS, Judge, filed the opinion of the Court.

KRAMER, Judge, filed a concurring opinion.

IVERS, Judge:

The veteran appeals from an August 21, 1996, Board of Veterans’ Appeals (BVA or Board) decision which (1) denied entitlement to educational benefits under chapter 30, title 38, United States Code, for the veteran’s enrollment in college from August 31 to September 14, 1992; and (2) denied entitlement to educational benefits at a full-time rate for concurrent enrollment in a resident course and in an independent-study course between June 21 and August 13,1993. The appellant has filed an informal brief, and the Secretary has filed a motion for summary affirmance. For the reasons stated below, the Court will affirm the BVA’s August 21, 1996, decision.

I. FACTS

The veteran served in the United States Navy from July 1972 to his retirement in February 1995. R. at 12-18. The claim underlying this appeal is for educational benefits under chapter 30, title 38 of the United States Code, for college courses taken by the veteran while he was on active duty. R. at 2.

The University of La Verne (the University) in San Diego, California, submitted an enrollment certification, received by VA in October 1992, showing that the veteran was enrolled in college degree courses from September 15, 1992, to October 23, 1992. R. at 30. VA sent a letter to the veteran in October 1992, notifying him that he “ha[d] been awarded education benefits under the Montgomery GI Bill — Active Duty Educational Assistance Program (Chapter 30),” [hereinafter Chapter 30], for the certified enrollment period. R. at 33.

Similarly, in July 1993, VA received an enrollment certification from the University for the veteran’s enrollment from June 21, 1993, to August 13, 1993, in two classes, one, a 3-credib-hour in-residence course, and the other, a 3-eredib-hour independ.ent-study course. R. at 36. The veteran was awarded benefits at a three-quarter-time rate for that period of enrollment. R. at 6, 48.

In January 1994, the University sent a letter to VA seeking adjusted payments for the 1992 and 1993 enrollment periods covered in the certifications. R. at 39. A corrected certification was submitted for the 1992 period to show the beginning date of enrollment as August 31, 1992, instead of September 15, 1992. R. at 42. As to the 1993 period, the letter noted that the veteran had been paid at a three-quarter-time rate for that period, and asserted that payment [438] should have been based on full-time attendance in a summer term. R. at 39.

VA responded to the University’s letter in a letter to the veteran telling him that no additional payments could be made. R. at 48. Regarding the 1992 period, VA wrote: “[VA] cannot pay for claims when the effective date is more than 1 year prior to date of receipt. Claim was received January 18, 1994.” Id. VA explained that three-quarter-time was the correct payment rate for the 1993 period because “[independent study which began prior to July 1, 1993, was measured differently from class room courses.” Id.

In March 1994, the veteran filed a Notice of Disagreement and requested a hearing in response to the VA letter denying payment of additional educational benefits. R. at 50-51. VA issued a Statement of the Case and scheduled a hearing. R. at 61-69. At the hearing, the veteran’s testimony concerned educational benefits for the previously discussed 1992 and 1993 periods, and apparent shortfalls in VA payments of his benefits. R. at 84-97. Regarding the alleged shortfalls, the veteran stated that he had requested an audit of his VA educational benefits records, but that a response from VA was pending. R. at 91-92. The hearing officer identified the audit as “a separate matter,” and stated that he wanted to make sure that the audit would be performed. R. at 95; see also R. at 92.

The hearing officer’s decision, dated May 16, 1994, denied entitlement to payment of additional educational benefits for both the 1992 and 1993 periods. R. at 99-100. The decision noted that the hearing was “to be considered the veteran’s Substantive Appeal in lieu of a VA Form 9,” and asked VA to take appropriate action regarding the veteran’s requested audit. R. at 100.

In the August 1996 BVA decision presently on appeal, the Board found that the veteran was not entitled “to a retroactive award of educational benefits ... for his enrollment from August 31, 1992[,] to September 14, 1992,” nor “to payment of full-time Chapter 30 educational benefits for concurrent enrollment in a resident course and an independent-study course prior to July 1993.” R. at 3.

II. ANALYSIS

A. The August 31 to September

14, 1992, Period

The regulations for administering Chapter 30 benefits are in Subpart K, Part 21 of title 38 of the Code of Federal Regulations. The regulations provide, in pertinent part, that the commencing date of an award of educational assistance “shall be the latest of the following dates[:] (1) The date the educational institution certifies under paragraph (b) or (c) of this section. (2) The date one year before VA receives the veteran’s or servicemember’s application or enrollment certification, whichever is the later.” 38 C.F.R. § 21.7131(a) (1997) (emphasis added). Paragraphs (b) and (c) of section 21.7131 describe dates that will be recognized as start dates for different types of courses.

In the present case, the University certified, on January 12, 1994, that the veteran had been enrolled in college degree courses from August 31, 1992, to October 23, 1992. R. at 42. VA received the enrollment certification form on January 18, 1994. R. at 48. The date the University certified as the enrollment date was August 31, 1992, and the date one year before VA received the enrollment certification was January 18, 1993. The later of these two dates, and, therefore, the commencing date of an award of educational benefits, would have been January 18, 1993. See 38 C.F.R. § 21.7131(a)(1) and (2). Since the commencing date of any award was after the enrollment period for which the veteran sought benefits, no award could be made. The Board correctly applied the regulations to the factual evidence to reach this conclusion and, thus, its action was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. See Sabonis v. Brown, 6 Vet.App. 426, 430 (1994) (applicable law requires denial of claim); cf. 38 U.S.C. § 7261(a)(3) (Court must set aside Board decisions not in accordance with the law).

[439] B. The June 21 to August 13, 1993, Period

The veteran contends that his Chapter 30 educational benefits should be paid at the full-time rate for courses taken in the summer of 1993. Appellant’s Brief (Br.) at 4-5. Under the law in effect at the time of the veteran’s enrollment, however, the courses could not be considered full-time.

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Taylor v. West, 11 Vet. App. 436, 1998 U.S. Vet. App. LEXIS 1163, 1998 WL 658277 (Cal. 1998).

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