Citation Nr: 0001780 Decision Date: 01/21/00 Archive Date: 01/28/00 DOCKET NO. 98-02 772 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a retroactive award of Montgomery G.I. Bill benefits for the enrollment period May 6, 1996 to July 26, 1996. (The issues of entitlement to service connection for a bilateral knee disorder, tinnitus, hypertension, and stress fractures of the legs, entitlement to an initial evaluation in excess of 10 percent for right carpal tunnel syndrome, entitlement to an initial compensable evaluation for left carpal tunnel syndrome, and an initial compensable evaluation for bilateral hearing loss are addressed in a separate decision under the same docket number). REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K.L. Salas, Associate Counsel INTRODUCTION The veteran had active military service May 1975 to January 1996. This appeal arose from a rating decision by the Department of Veterans Affairs (VA) Montgomery, Alabama Regional Office (RO). In August 1997 the RO denied the veteran's claim for entitlement to a retroactive award of Montgomery G.I. Bill benefits for the enrollment period May 6, 1996 to July 26, 1996. The case has been forwarded to the Board of Veterans' Appeals (Board) for appellate review. FINDINGS OF FACT 1. The veteran's Application for Educational Benefits, VA Form 22-1990 was received by the RO in March 1997. 2. An Enrollment Certification, VA Form 22-1999-2 regarding enrollment at the Alabama Criminal Justice Training Center from May 6, 1996 to July 26, 1996 was received at the RO on August 11, 1997. CONCLUSION OF LAW The requirements for a retroactive award of educational benefits under Chapter 30, Title 38, United States Code, for the enrollment period May 6, 1996 to July 26, 1996 have been met. 38 U.S.C.A. §§ 3011, 3034, 5107 (West 1991 and Supp. 1999); 64 Fed. Reg. 23769-23773 (May 4, 1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The veteran's application for education benefits was received in March 1997. He reported that he completed a Peace Officer Standard and Training Commission with the Alabama Highway Patrol and Police Academy in Selma, Alabama. The program began on May 6, 1996 and was completed in July 1996. Accompanying the application was a copy of the Peace Officers Standards and Training diploma indicating an award date of July 26, 1996. On a printout from March 1997 there are handwritten notes indicating a conversation between the RO and the Alabama State Trooper Academy. The note indicated that the certifying official of the Academy stated that she had not submitted enrollment information before and the veteran did not want benefits at the time. An enrollment certification (VA Form 22-1999) for the period May 6, 1996 to July 26, 1996 was received from the Alabama Criminal Justice Training Center in August 1997. The same month the veteran was notified that enrollment information was received too late and that regulations prohibited payment of benefits prior to one year from the date of receipt of the enrollment certification or the application whichever was later. The veteran stated in his notice of disagreement (NOD) and substantive appeal that he did not know that he needed to submit an enrollment certification and added that an enrollment certificate had not been enclosed with his application. He also argued that he thought that VA would contact the academy and obtain the enrollment certification. At his hearing before the Board the veteran stated that he waited to file his application for educational benefits because he had bad guidance from Fort Benning and he felt he had longer to file. He also testified "I found out from a previous class member that they gave them the paperwork to file for the school if they were prior service and retired." When asked about the fact that the enrollment certification was not received by VA until August 1997 the veteran stated that "several things were going on during that time, having to move from Georgia to Alabama, my mother died, just so many things." He testified that he probably did not read the instructions accompanying the application and stated that in all honesty it was probably partially his fault with his move and family problems at the time. Criteria The criteria for the assignment of effective dates for educational assistance benefits were amended during the pendency of the claimant's appeal, effective June 3, 1999. See 64 Fed. Reg. 23769-23773 (May 4, 1999). The amendment established a standard for determining what constitutes a formal claim, an informal claim, and an abandoned claim that could be applied uniformly to the educational assistance programs VA administers. In addition, the amendment established less restrictive effective dates for awards of educational assistance; established uniform time limits for acting to complete claims; and stated VA's responsibilities when a claim is filed. Prior to the regulatory change, the commencing date of an award of educational assistance was the latest of the following dates: 1) the date certified by the educational institution; 2) one year before VA receives the veteran's application or enrollment certification, whichever is later; 3) the effective date of the approval of the course, or one year before the date VA receives the approval notice, whichever is later; or, 4) the date of the reopened application. 38 C.F.R. § 21.7131(a) (effective prior to June 3, 1999). See also Taylor v. West, 11 Vet. App. 436 (1998). Under the regulations as amended, the provisions were eliminated establishing the commencing date of an award as the later of one year before the date of receipt of claim or one year before the date of receipt of an enrollment certificate from the educational institution attended. See 64 Fed. Reg. 23769-23773 (May 4, 1999). In the proposed rulemaking it was noted that delays in receipt of certification are typically the fault of educational institution. The certification of enrollment was not felt to be under the veteran's control. 63 Fed. Reg. 23409 (April 29, 1998). In general where a regulation changes after the claim has been filed or reopened but before the administrative or judicial process has been concluded, the version of the regulation more favorable to the appellant will apply unless Congress or the Secretary provided otherwise. Karnas v. Derwinski, 1 Vet. App. 308 (1991). In Rhodan v. West, 12 Vet. App. 55 (1998) it was held by the Court of Appeals for Veterans Claims (Court) that the revised regulations at issue (the schedule of ratings for mental disorders) did not allow for their retroactive application prior to the stated effective date. Because the revised regulations expressly stated an effective date and contained no provision for retroactive applicability, it was evident that the Secretary intended to apply those regulations only as of the effective date. Therefore, in view of the effective date rule contained in 38 U.S.C. § 5110(g), which prevents the application of a later, liberalizing law to a claim prior to the effective date of the liberalizing law, the Secretary could not apply the revised rating schedule for mental disorders prior to the effective date of the regulation. The Rhodan case has been vacated by U.S. Court of Appeals for the Federal Circuit. See Haywood v. West, No. 99-7056 (October 28, 1999). Analysis In view of the fact that the Rhodan decision has been vacated, the Board is applying the more favorable (revised) criteria to the veteran's claim. Upon consideration of VA regulations, and the facts of record, the Board concludes that the veteran is entitled to retroactive payment of Montgomery G.I. Bill benefits for the enrollment period May 6, 1996 to July 26, 1996. The veteran's application for education benefits was received in March 1997, less than one year after the veteran started and completed the course and the educational institution certified the period May 6, 1996 to July 26, 1996. ORDER Entitlement to a retroactive award of G.I. Bill benefits for the enrollment period May 6, 1996 to July 26, 1996 is granted subject to the laws and regulations governing the payment of monetary awards. RONALD R. BOSCH Member, Board of Veterans' Appeals