Citation Nr: 0004294 Decision Date: 02/17/00 Archive Date: 02/23/00 DOCKET NO. 98-16 021A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to the payment of educational benefits under Chapter 35, Title 38, United States Code, for courses taken at Puerto Rico Youth Volunteer Corps, Job Corps Program, from August 1, 1989, to August 14, 1991. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD C. Allen, Associate Counsel INTRODUCTION According to available records, the appellant is the child of a veteran who had active military service from August 1962 to March 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1998 decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Atlanta, Georgia, which denied a claim by the appellant seeking entitlement to the payment of educational benefits under Chapter 35, Title 38, United States Code, for courses taken at Puerto Rico Youth Volunteer Corps, Job Corps Program, from August 1, 1989, to August 14, 1991. The Board notes that the appellant, in a January 1999 statement, raised issues of clear and unmistakable error with RO rating decisions dated July 1983, January 1986, February 1988, and December 1996. These claims have not been addressed by the RO. They are referred back to the RO for proper disposition. REMAND The appellant contends, in essence, that he is entitled to retroactive payment of educational benefits under Chapter 35, Title 38, United States Code, for courses taken at Puerto Rico Youth Volunteer Corps, Job Corps Program, from August 1, 1989, to August 14, 1991. After careful review of the record, the Board finds that further development is necessary prior to appellate review. Specifically, the Board finds that the regulations pertaining to payment of educational benefits were amended during the pendency of this appeal. The United States Court of Appeals for Veterans Claims has held that, where the law or regulation changes after a claim has been filed, but before the administrative or judicial appeal process has been conducted, the version of the law or regulation most favorable to the appellant shall be applied. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). Under the VA regulations in effect at the time of the RO's July 1998 decision, payment of Chapter 35 educational benefits was prohibited for any period earlier than one year prior to the date of the receipt of the appellant's application for educational benefits or the enrollment certification verifying the applicable enrollment periods, whichever is later. See 38 C.F.R. § 21.4131(a)(2) (1998). Under the amended regulations, if the award is the first award of educational assistance, payment of such benefits is prohibited beyond one year prior to the date of claim. 38 C.F.R. § 21.4131(a)(1)(ii) (1999). The "date of claim" "is the date on which a valid claim or application for educational assistance is considered to have been filed with VA, for purposes of determining the commencing date of an award of that educational assistance." 38 C.F.R. § 21.1029 (1999). Such a claim may be formal or informal. A formal claim is a claim for educational assistance benefits that is filed on the specific form prescribed by the VA Secretary (i.e. VA Form 22-5490, Application for Survivors' and Dependents' Educational Assistance). Id. An informal claim is "[a]ny communication from an individual, or from an authorized representative or a Member of Congress on that individual's behalf that indicates a desire on the part of the individual to claim or to apply for VA-administered educational assistance" or "a claim from an individual or from an authorized representative on that individual's behalf for [educational assistance] that is filed in a document other than in the prescribed form." Id. In this case, the Board finds that review of the qualifying veteran's claims file is necessary in order to conclusively ascertain when a claim for Chapter 35 educational benefits was first submitted. In light of the above, the Board finds that it would be remiss to review this case until further evidentiary development was conducted. Accordingly, appellate consideration will be deferred and the case is REMANDED to the RO for the following actions: 1. The RO is requested to obtain the claims file of [redacted], VA Claim # [redacted], Social Security # [redacted], and associate it with the appellant's Chapter 35 file. 2. Thereafter, the RO should review the appellant's claim seeking entitlement to payment of educational benefits under Chapter 35, Title 38, United States Code, for courses taken at Puerto Rico Youth Volunteer Corps, Job Corps Program, from August 1, 1989, to August 14, 1991. Both the old and amended regulations pertaining to the commencement date of an award of educational benefits should be considered. See 38 C.F.R. §§ 21.1029 to 21.3141 (1998); 38 C.F.R. §§ 21.1029 to 21.3141 (1999). 3. Following completion of the above actions and, if any portion of the RO's decision remains unfavorable, the appellant should be provided with a Supplemental Statement of the Case which provides the pertinent laws and regulations, a summary of the evidence, and detailed reasons and bases for the decision reached. The appellant should then be afforded a reasonable period of time in which to respond. Thereafter, in accordance with the current appellate procedures, the case, including the veteran's VA claims folder and the appellant's Chapter 35 folder should be returned to the Board for completion of appellate review. By this REMAND, the Board intimates no opinion, either factual or legal, as to the ultimate determination warranted in this case. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. A. BRYANT Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).