BVA9503768 DOCKET NO. 93-08 215 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to Chapter 34 educational assistance benefits under the provisions of the Pacheco Settlement. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. D. Turano, Counsel INTRODUCTION The veteran served on active duty from July 1966 TO March 1970. This matter came before the Board of Veterans Appeals (Board) from a September 1992 decision by the Regional Office (RO) denying the veteran's claim for Chapter 34 educational assistance benefits for course work between January 1, 1982, and December 31, 1984. A notice of disagreement was received in October 1992. The statement of the case was issued in March 1993. A substantive appeal was received in March 1993. The veteran bases his claim of entitlement to Chapter 34 educational assistance benefits on the consent order entered in Pacheco v. Department of Veterans Affairs, No. C83-3098 (N.D. Ohio, Aug. 20, 1991) (Pacheco Order or Order). The Board notes that its jurisdiction to hear this appeal of a decision on the merits of the veteran's claim likewise derives from the Pacheco Order and that both the original decision and the Board's review are limited by paragraph 6 of the Order. In pertinent part, that paragraph provides that claims based on the Pacheco Order will be exclusively governed by the laws, regulations and policies operative on December 31, 1984, (the date the "delimiting date extension provisions" expired), "including, but not limited to, the finality of VA decisions (38 U.S.C.A. § 211(a))." Pacheco Order, slip op. at 9. Further, the Order goes on to express the agreement of the parties that "[n]o decision on a claim made under this Order shall be brought to the Court of Veterans Appeals for review." Pacheco Order, slip op. at 9-10. Consequently, while the Board is mindful that the United States Court of Veterans Appeals is empowered to review Board decisions, 38 U.S.C.A. § 7252 (West 1991), and that the Board is required to explain, in a notice of decision provided the claimant, the procedure for obtaining review of the Board's decision, 38 U.S.C.A. § 5104 (West 1991), the veteran in this case has, under the terms of the Order, in effect, waived the right to seek such review since to do so would plainly violate the express terms of the Pacheco Order. The Board will advise the veteran of the procedures for obtaining review of the Board's decision in this matter by the United States Court of Veterans Appeals as required by law. However, the Board now also advises the veteran of the settlement terms embodied in the Pacheco Order that no such review will be sought. The Board further notes that in a decision by the RO dated in December 1992, the veteran was found to be permanently and totally disabled for Department of Veterans Affairs (VA) pension purposes. In a statement by the veteran in February 1993, he requests consideration for additional pension benefits based on being housebound. This matter is referred to the RO for appropriate action. REMAND The veteran seeks VA educational assistance benefits based on his pursuit of an associate degree in accounting and bookkeeping from Chippewa Valley Technical College. It is reported that this program, which apparently resulted in an associate degree, began in January 1982. In August 1992, the veteran submitted a timely application for educational assistance benefits under Chapter 34, Title 38, United States Code. He contends that he should be awarded benefits under the Pacheco Order for the enrollment period between January 1, 1982, through December 31, 1984. Pursuant to 38 U.S.C.A. § 3462(c) (West 1991), no educational assistance under Chapter 34, Title 38, United States Code, could be afforded the veteran later than June 1, 1976. However, a veteran with unused Chapter 34 entitlement could use those benefits to pursue a program of apprenticeship or other on-job training, a course with an approved vocational objective, or a program of secondary education if the veteran did not have a diploma or equivalency certificate. 38 U.S.C.A. § 3462(a)(3)(A) (West 1991); 38 C.F.R. § 21.1044 (1994). The consent order in Pacheco applied to Vietnam Era veterans who pursued approved Associate degree programs predominantly vocational in content between January 1, 1982, and December 31, 1984, and defined the phrase "Approved Associate degree program" as an Associate degree program which is approved by a State approving agency or VA and which is predominantly vocational in content. Degrees awarded in Associate degree programs may include different degrees such as Associate in Arts, Associate in Applied Science, and Associate in Science degrees. Pacheco at 3. In the present case the veteran argues that the associate degree he earned from Chippewa Valley Technical College was predominantly vocational in nature. He reports taking courses in computers, mathematics, economics and "office machines" and that his degree is designed to assist a tax specialist or certified public accountant. In a report of contact from personnel at the Milwaukee, Wisconsin RO, it was reported that the program completed by the veteran at the Chippewa Valley Technical College was approved between 1982 and 1984 but that the associate degree in accounting and bookkeeping was not predominantly vocational in content. This data served as a basis for the adverse determination rendered by the RO in September 1992. However, VA has a duty to assist a veteran in the development of evidence pertinent to a well-grounded claim. 38 U.S.C.A. § 5107 (West 1991). Based on the circumstances of this case, the Board finds that additional information should be secured as to the specific courses completed by the veteran during which he earned the associate degree in accounting and bookkeeping. Such information is necessary in order to allow the Board to render an independent determination as to the nature of the program in question. In light of the foregoing, it is the decision of the Board that further development of this claim is in order. Accordingly, this case is hereby remanded for the following action: 1. The RO should undertake all necessary action to secure an official transcript or other information relating to the veteran's completion of the requirements for an associate degree in accounting and bookkeeping from Chippewa Valley Technical School. If necessary, the RO should contact officials from this institution in an effort to secure course descriptions and other information as to the nature of the courses taken by the veteran in pursuit of his degree and the dates in which such courses were taken. 2. Thereafter, the RO should review this matter on appeal with consideration given to any pertinent information obtained pursuant to the above request. In the event findings remain adverse to the veteran, he and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. The case should then be returned to the Board after compliance with all appropriate appellate procedure. No action is required of the veteran unless he is further notified. In reaching these conclusions the Board intimates no opinion, either legal or factual, as to the ultimate outcome of this case pending completion of the requested development. G.H. SHUFELT 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. 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).