Citation Nr: 0004817 Decision Date: 02/24/00 Archive Date: 02/28/00 DOCKET NO. 94-46 860A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to payment of a subsistence allowance under Chapter 31 for the period from July 1992 to October 1992. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David S. Nelson, Associate Counsel INTRODUCTION The veteran had active service from January 1956 to March 1964. This appeal arises from a September 1994 determination of the Vocational Rehabilitation and Counseling Officer of the St. Louis, Missouri, Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT The veteran's delimiting date for vocational rehabilitation training under the provisions of Chapter 31 was March 1, 1987. CONCLUSION OF LAW The requirements for payment of a subsistence allowance under Chapter 31 for the period from July 1992 to October 1992 are not met. 38 U.S.C.A. §§ 3108, 3680 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran contends that he should be paid a subsistence allowance for the time he was enrolled in college course work in the Fall of 1992. The veteran essentially asserts that because VA awarded some Chapter 31 benefits for the Fall of 1992, he should be entitled to the subsistence allowance as well. Subsequent to meeting with VA vocational rehabilitation personnel in June 1992, the veteran enrolled in Phillips Junior College in Springfield, Missouri, for a term beginning in July 1992. In September 1992, the veteran was informed by VA that his eligibility for Chapter 31 vocational rehabilitation benefits for the Fall 1992 term had been based on an incorrect eligibility termination date. He was allowed to complete the term (his tuition was paid by VA and he finished in October 1992) but was advised that no further Chapter 31 funds would be forthcoming for additional study. In September 1994 the veteran was informed that his eligibility period for vocational rehabilitation benefits ended on March 1, 1987. He was also informed that he did not qualify for an extension of his eligibility benefits. As noted in an April 1999 report of contact and October 1999 and February 2000 statements from the veteran's representative, the veteran is only appealing the fact that he did not receive a subsistence allowance for the period he was enrolled in Philips Junior College in the Fall of 1992. The veteran essentially asserts that because VA paid his tuition for the Fall of 1992, he should be entitled to the subsistence allowance as well. The rules regarding the award of subsistence allowances for participation in vocational rehabilitation training for veterans with service-connected disabilities are contained in 38 U.S.C.A. § 3108 (West 1991). Payment of educational assistance or subsistence allowances are made to eligible veterans pursuing a program of education or training, and such payments shall be paid only for the period of such veteran's enrollment in such program. 38 U.S.C.A. § 3680 (West 1991). A review of the file reveals that any Chapter 31 benefits awarded and provided to the veteran in the Fall of 1992 for study at Phillips Junior College were made by virtue of an administrative error. The veteran does not argue that the delimiting date was incorrect. As noted earlier, the veteran essentially asserts that because VA awarded some Chapter 31 benefits (tuition) for the Fall of 1992, he should be entitled to the subsistence allowance as well. However, the fact that the veteran was incorrectly awarded benefits does not establish a legal basis for entitlement to other VA benefits. Government benefits must be authorized by statute, and erroneous actions by a government employee do not serve to otherwise establish entitlement. See generally McTighe v. Brown, 7 Vet. App. 29, 30 (1994) (citing OPM v. Richmond, 496 U.S. 414, 424 (1990). Accordingly, as the veteran's eligibility period for vocational rehabilitation benefits under Chapter 31 ended in March 1987, the veteran is not entitled to payment of a subsistence allowance under Chapter 31 for the period from July 1992 to October 1992. In a statement received in January 1994, the veteran indicated that VA personnel had informed him that he was eligible for the subsistence allowance. Assuming for the sake of argument that the veteran was incorrectly advised by VA employees regarding his eligibility for the subsistence allowance, the Board is nevertheless not authorized to award payment of benefits where statutory requirements for such benefits were not met. See Harvey v. Brown, 6 Vet. App. 416, 424 (1994). It is regrettable if the veteran may have received inaccurate advice regarding his eligibility for the subsistence allowance, but this would not create any legal right to benefits where such benefits are otherwise precluded by law. See Shields v. Brown, 8 Vet. App. 346, 351 (1995). The Board acknowledges and is sympathetic to the arguments advanced by the veteran, especially in light of his honorable service; however, the legal criteria governing service eligibility requirements for Chapter 31 benefits, including the subsistence allowance, are clear and specific. The Board is not free to deviate from the law as passed by the Congress. Based on the foregoing, the Board finds that there is simply no legal basis to find the veteran eligible for the subsistence allowance (for a term of study in the Fall of 1992) under Chapter 31. As the disposition of this claim is based on the law, and not on the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The appeal is denied. ALAN S. PEEVY Member, Board of Veterans' Appeals