BVA9502036 DOCKET NO. 93-00 179 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Francisco, California THE ISSUE Whether the veteran is entitled to educational assistance benefits prior to April 9, 1990, under Chapter 30, Title 38, United States Code, for a fellowship program at Los Angeles County Harbor U.C.L.A. Medical Center. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. B. Werdal, Associate Counsel INTRODUCTION The veteran served on active duty from November 1986 to November 1988. This matter came before the Board of Veterans' Appeals (Board) of the Department of Veterans Affairs (VA) on appeal from a decision letter dated July 16, 1991, from the Muskogee, Oklahoma, Regional Office (RO). The notice of disagreement was received in May 1992. The statement of the case was sent to the veteran in July 1992. The substantive appeal was received in September 1992. The Board notes that in the supplemental statement of the case sent to the veteran in June 1994 the RO denied the veteran's claim for Chapter 30 benefits for the enrollment period beginning June 14, 1990, and ending in November 1990. However, the RO did not inform the veteran of her appellate and procedural rights in that regard as is required by 38 U.S.C.A. § 5104 (West 1991); 38 C.F.R. § 19.25 (1993). Therefore, that claim has not been properly adjudicated, is not in appellate status and is not before the Board at this time. The Board refers that claim to the RO for appropriate action. With regard to the veteran's claim that inaction or erroneous action by VA employees delayed the approval of the program, the Board observes that there is no evidence that the VA did not respond in a timely manner once the state approving agency informed the RO that the rheumatology program had been approved. However, the argument she asserts in that regard is a claim for equitable relief, and is a matter over which the Board has no jurisdiction. 38 U.S.C.A. § 503 (West 1991). Accordingly, that matter is also referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends she should be granted educational assistance benefits under Chapter 30, Title 38, United States Code, earlier than April 9, 1990, for the rheumatology fellowship she reportedly began in November 1988 and completed in November 1990 at Los Angeles County Harbor U.C.L.A. Medical Center, as she had been attempting to get approval for the program but errors and inaction by VA delayed the grant of approval. She points out that approval of that program was pro forma once the correct paperwork was submitted in April 1991, and contends it is unfair to deny her benefits for the period of time prior to April 9, 1990. 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 Chapter 30 claims 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 veteran is not entitled to Chapter 30 educational assistance benefits prior to April 9, 1990, for her fellowship program at Los Angeles County Harbor U.C.L.A. Medical Center. FINDINGS OF FACT 1. In February 1989 the veteran first filed a VA Form 22-1999, Enrollment Certification, reporting enrollment from January 1989 to June 1989 at Los Angeles County Harbor U.C.L.A. Medical Center for a fellowship program at that facility. 2. The fellowship program in which the veteran was participating was not approved by the state approving agency until April 9, 1991; the approval was made effective retroactive to April 9, 1990. CONCLUSION OF LAW The appellant's claim for Chapter 30 educational assistance benefits prior to April 9, 1990, for the rheumatology fellowship in which she participated at Los Angeles County Harbor U.C.L.A. Medical Center must be denied. 38 U.S.C.A. §§ 3034, 3471, 3672 (West 1991); 38 C.F.R. § 21.7131 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Educational assistance benefits under Chapter 30 are available to veterans with basic eligibility for use in programs of education at facilities that have been approved for Chapter 30 benefit purposes by a state approving agency. 38 U.S.C.A. §§ 3002, 3011 (West 1991); 38 C.F.R. § 21.7070 (1993). The requirements regarding approval of applications for benefits under Chapter 30 include those found in 38 U.S.C.A. § 3471 (West 1991) and in Chapter 36 of Title 38. 38 U.S.C.A. § 3034 (West 1991). Under 38 U.S.C.A. § 3471 (West 1991), the application for benefits cannot be approved if the program selected fails to meet any requirements of Chapters 34 or 36. Chapter 36 requires that any course for which the veteran receives educational assistance benefits must be approved by the state approving agency. 38 U.S.C.A. § 3672 (West 1991). When an eligible person enters or reenters training, the commencing date of his or her award of educational benefits shall be the latest of the following dates: (1) the date the educational institution certifies; (2) the date one year before the date VA receives the person's application or enrollment certification, whichever is the 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) in the case of a claim reopened after abandonment, the date VA received the application or enrollment certificate, whichever is later. 38 C.F.R. § 21.7131(a) (1993). The veteran served on active duty in the United States Public Health Service from November 1986 to November 1988. In February 1989 she applied for Chapter 30 educational assistance benefits for a program at Los Angeles County Harbor U.C.L.A. Medical Center for an enrollment period beginning in January 1989 and ending July 1989. In March 1989 the VA learned that although some courses offered by that institution were approved for Chapter 30 purposes, the particular program in which the veteran was enrolled had not been approved by the state approving agency. The veteran was informed of that fact in a letter dated in March 1989, a copy of which was sent to the state approving agency. In December 1989 she applied for Chapter 30 benefits for enrollment in the same program beginning in September 1989 and ending in June 1990. VA personnel again learned that the program was still not approved by the state approving agency, and so advised the veteran of that fact in a letter dated in January 1990. A VA Form 119, Report of Contact, reflects that in May 1990 the RO's education liaison representative (ELR) contacted the California state approving agency and was told that agency had no request for approval pending for the program. The certifying official at the school told the ELR he would resubmit the application for approval of the program. The claims folder contains a photocopy of a letter dated February 12, 1991, from the school to the state approving agency requesting approval of the rheumatology fellowship. A photocopy of a letter dated March 20, 1991, from the state approving agency to the school informing the school that the rheumatology fellowship had been approved was added to the claims folder by the veteran as an attachment to the VA Form 9 received after the Board's remand. An undated memorandum prepared by VA personnel based on a conversation with the state approving agency reflects that the effective date of the approval of the rheumatology program would be April 9, 1990. The claims folder also contains a VA Form 22-1998a, Approval Information- Accredited IHL Program, that shows that the rheumatology program at Los Angeles County Harbor U.C.L.A. Medical Center was approved. The effective date of February 12, 1991, was crossed out and the new date of April 9, 1990, was handwritten on the form. The revision was dated June 7, 1991, and contains a reference to G. M., who is a VA employee. Also associated with the claims folder was a copy of the March 1991 letter from the state approving agency with the effective date of the approval revised to April 9, 1990, and a reference to the agency's representative in Los Angeles. Based on that information, and on the enrollment certification received in December 1989, the RO granted Chapter 30 benefits for the portion of enrollment from April 9, 1990, to June 14, 1990. The veteran contends that the effective date of the approval should have been earlier than April 1990, arguing that administrative delays and errors by VA personnel resulted in an effective date that denied her payment of benefits for the first fifteen months of the fellowship program. The Board points out that although the veteran did have basic eligibility for Chapter 30 educational assistance benefits, those benefits could be used only in approved programs. The particular program for which she sought to use those benefits at Los Angeles County Harbor U.C.L.A. Medical Center, an institution at which other educational programs are approved by the state approving agency for VA benefit purposes, was not approved by the state approving agency at the time she began her fellowship there. Until the proper steps were taken by the school in February 1991, and until the state approving agency acted upon the information supplied by the school, VA had no legal basis to award benefits for enrollment in the rheumatology program. 38 U.S.C.A. § 3672 (West 1991). The effective date of the approval was set by the state approving agency as April 9, 1990. As a result, no payment of Chapter 30 benefits could be made for enrollment periods before April 9, 1990. As noted above, the commencing date of an award of educational benefits may not be earlier than the effective date of the approval of the course. 38 C.F.R. § 21.7131(a) (1993). In December 1989 the veteran filed a VA Form 22-1999, Enrollment Certification, reporting enrollment from September 1989 to June 14, 1990. When all the evidence is taken into account, the Board finds that the rheumatology program at Los Angeles County Harbor U.C.L.A. Medical Center was not approved for VA Chapter 30 purposes until April 9, 1990, and there is no legal basis for payment of Chapter 30 benefits for enrollment before that date. 38 U.S.C.A. §§ 3034, 3471, 3672 (West 1991); 38 C.F.R. § 21.7131 (1993). Accordingly, there is no legal basis for an award of the Chapter 30 benefits before that date, and the appeal must be denied. ORDER The appeal is denied. THOMAS J. DANNAHER Member, Board of Veterans' Appeals 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.