BVA9503498 DOCKET NO. 93-06 214 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to Department of Veterans Affairs (VA) subsistence allowance under Chapter 31, Title 38, United States Code, for the period from June 15, 1992, to August 31, 1992. 2. Whether the veteran's request that he be allowed to attend a summer 1992 course of study at the University of Indiana as part of his VA vocational training and rehabilitation under Chapter 31, Title 38, United States Code, was properly denied. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Alan S. Peevy, Associate Counsel INTRODUCTION The veteran had active military service from February 1961 to July 1988. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 1992 determination by the Chief, Vocational Rehabilitation and Counseling Division of the St. Louis, Missouri, Regional Office (RO). A notice of disagreement on the subsistence allowance issue was received in July 1992, and a statement of the case addressing this issue was furnished to the veteran and his representative in July 1992. The veteran's substantive appeal on this issue was received in September 1992. The veteran testified at a November 1992 hearing at the RO, and indicated his additional disagreement with the denial of his request for authorization to attend a summer 1992 course of study at the University of Indiana as part of his VA vocational training and rehabilitation . The transcript of the hearing constituted a notice of disagreement on this additional issue. A supplemental statement of the case which cited both issues was furnished to the veteran and his representative in December 1992. A written communication from the veteran, received in February 1993, constituted a substantive appeal on the issue regarding the summer 1992 program at the University of Indiana. The veteran is represented by the Disabled American Veterans. REMAND By regulation, a statement of the case must be complete enough to allow the appellant to present written argument before the Board. 38 C.F.R. § 19.29 (1994). This regulation further provides that a statement of the case contain a summary of the evidence, a summary of applicable laws and regulation with a discussion of how they affect the determination, and the reasons for the determination as to each issue. The July 1992 statement of the case only addressed the subsistence allowance issue since the veteran had not yet filed a notice of disagreement on the summer program of study issue. In this statement of the case, the veteran was essentially advised that subsistence allowance was not payable during periods of tutorial assistance. The Board notes here that the tutorial assistance during the period in question was apparently approved and paid for as part of the veteran's Chapter 31 program. However, although the statement of the case cites and discusses various regulations and give reasons why tutorial assistance cannot be considered independent instruction, there is no clear citation to or discussion of any laws or regulations (or interplay of specific laws and regulations) which preclude the payment of subsistence allowance during a period of tutorial assistance which has been approved and paid for under the Chapter 31 program. Further, the December 1992 supplemental statement of the case seems to give reasons why the veteran's period of tutorial assistance could not be deemed to be on-the-job training, but provides no real insight into the legal basis for the denial of subsistence allowance during the period of tutorial assistance. After reviewing the statement of the case together with the supplemental statement of the case, the Board is of the opinion that the legal basis for the denial of the veteran's claim has not been articulated in a clear and understandable manner. With regard to the additional issue of whether or not the denial of the veteran's request to attend a 1992 summer program of study at the University of Indiana as part of his Chapter 31 program was properly denied, the Board notes that the record does not include any documentation which clearly shows the reasons for the denial. There appears to be no formal denial in the file, and while the December 1992 supplemental statement of the case lists this additional issue, it contains no laws, regulations or reasons for the denial of this claim. In sum, the Board believes that the supplemental statement of the case fails to adequately apprise the veteran of the reasons and legal basis for the denial of his request to attend the summer study program. Further, the Board notes that the veteran has indicated that after completion of the tutorial assistance program, he was to take a test or tests which might result in the award of college level credit based on the information covered during the period of tutorial assistance. There is no indication in the record if any credit was ever actually awarded based on the period of tutorial assistance in question. Under the particular circumstances of this case, the Board believes that it would be helpful to ascertain whether or not college level credit has been awarded to the veteran based on his period of tutorial assistance from June 15, 1992, to August 31, 1992. For the reasons set forth above, the case is hereby REMANDED for the following actions: 1. The RO should ascertain whether or not the veteran was awarded college level credit based on examination(s) which covered the material which was the subject of the tutorial assistance he received from June 15, 1992, to August 31, 1992. 2. The RO should obtain transcripts with grades for all courses taken by the veteran in 1992. These should be included in the file. 3. The veteran and his representative should then review the record and determine whether or not the veteran's claims can be granted. If the determination(s) as to either or both issues remain(s) adverse to the veteran, the veteran and his representative should be furnished a supplemental statement of the case. The supplemental statement of the case should address each issue in appellate status and should include a summary of the evidence, a citation to and discussion of the particular statutes and regulations applied, and a clear, detailed analysis of the reasons for the determination(s). It is imperative that the authority relied on (including any internal VA guidelines or manuals) be set forth and discussed. The specific reason(s), with supporting citations should be set forth for the conclusion in the June 18, 1992 letter that subsistence allowance can not be paid unless enrolled in an educational facility. After affording the veteran and his representative a reasonable opportunity to respond, the case should be returned to the Board for further appellate review of any issues remaining in appellate status. The purpose of this decision is to ensure that the veteran and his representative receive a proper and statement of the case outlining the reasons and legal basis for the denial of his claims. The Board intimates no opinion as to the eventual determinations to be made in this case. E. M. KRENZER 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. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1994).