BVA9501994 DOCKET NO. 93-05 554 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to a Department of Veterans Affairs (VA) work-study allowance. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Alan S. Peevy, Associate Counsel INTRODUCTION The veteran had active military service from April 1980 to January 1988. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 1992 determination by the Louisville, Kentucky, Regional Office (RO). A notice of disagreement was received in November 1992, and a statement of the case was issued that same month. The veteran's substantive appeal was received in December 1992. The veteran is represented by the Disabled American Veterans. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend that the veteran should be considered entitled to a VA work-study allowance. It is maintained that the information provided to the veteran regarding the legal requirements for entitlement to a work-study program has been ambiguous. Additionally, the veteran asserts that his ten year period of eligibility for VA educational assistance has not expired since he was not discharged from the military until 1988. Therefore, since his period of eligibility has not expired, he believes he should be entitled to a work- study allowance. Finally, the veteran requests the Board to consider his family's need as well as the broader needs of all veterans. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file and his educational file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against entitlement to a VA work-study allowance. FINDING OF FACT The veteran is not pursuing a program of rehabilitation, education, or training under Chapter 30, 31, 32 or 34 of Title 38, United States Code or Chapter 106 of Title 10, United States Code. CONCLUSION OF LAW The criteria for entitlement to a VA work-study allowance have not been met. 38 U.S.C.A. § 3485(2)(b) (West 1991); 38 C.F.R. §§ 21.272, 21.4145, 21.5145, 21.7145 (1993). REASONS AND BASES FOR FINDING AND CONCLUSION Applicable law provides that certain individuals may be paid an additional educational assistance allowance or "work-study allowance." 38 U.S.C.A. § 3485 (West 1991). However, the controlling statute limits such allowance to individuals who are pursuing a program of rehabilitation, education, or training under Chapter 30, 31, 32 or 34 of Title 38, United States Code or Chapter 106 of Title 10, United States Code. 38 U.S.C.A. § 3485(2)(b) (West 1991). Moreover, pertinent regulations clearly show that such a work-study allowance is only intended for those veterans who are actually pursuing one of the aforesaid programs. 38 C.F.R. §§ 21.272(a), 21.4145(a), 21.5145(a), 21.7145(a) (1993). In fact, one of the criteria considered is whether the veteran's existing benefit under one of the listed programs needs to be augmented. 38 C.F.R. §§ 21.272(b), 21.4145(b), 21.5145(b), 21.7145(b) (1993). As noted at the outset, the work study allowance is, in effect, an additional educational assistance benefit. As such, there must first be a finding that the veteran is already participating in (and thus already receiving educational assistance under) one of the VA programs listed in 38 U.S.C.A. § 3485(2)(b) (West 1991). The Board recognizes the veteran's contentions regarding his family's needs as well as his assertions that information provided to him regarding a work-study allowance were ambiguous. Additionally, the Board notes the veteran's argument that his ten year delimiting period for educational assistance benefits as provided for under 38 U.S.C.A. § 3232 (West 1991) has not expired. In this regard, the Board observes that the veteran has apparently already utilized all of his entitlement to educational assistance under Chapter 32, Title 38, United States Code. However, regardless of any delimiting period and any question of remaining eligibility for educational assistance benefits, the law as passed by the Congress clearly shows an intent to make a work-study allowance available only to veterans who are pursing a program of rehabilitation, education, or training under Chapter 30, 31, 32 or 34 of Title 38, United States Code or Chapter 106 of Title 10, United States Code. Moreover, it is clear from the regulatory scheme that there must be such participation in one of the listed VA programs before there can be entitlement to a work- study allowance. In the present case, the record does not show, nor does the veteran contend, that he is currently pursuing a program of rehabilitation, education, or training under Chapter 30, 31, 32 or 34 of Title 38, United States Code or Chapter 106 of Title 10, United States Code. Therefore, there is no legal basis for favorable action with regard to his appeal. Since the law is dispositive in the present case, the appeal must be denied. Sabonis v. Brown, 6 Vet.App. 426, 430 (1994). ORDER The appeal is denied. EUGENE A. O'NEILL Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.