Citation Nr: 1417261	
Decision Date: 04/17/14    Archive Date: 05/02/14

DOCKET NO.  11-25 372	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to payment or reimbursement of tutorial assistance in the Fall of 2010. 



WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

J. Nilon, Counsel




INTRODUCTION

The Veteran served on active duty from July 2001 to July 2005.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of an administrative decision issued in November 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) and Education Center in Muskogee, Oklahoma.

In March 2012 the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing.  A transcript of his testimony is of record. 


FINDING OF FACT

During the period August-December 2010 the Veteran was not pursuing a post-secondary program on a half-time or more basis.


CONCLUSION OF LAW

The requirements for payment or reimbursement of tutorial assistance in the Fall of 2010 are not met. 38 U.S.C.A. § 3492 (West 2002); 38 C.F.R. § 21.4236 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

Before addressing the merits of the claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations under the Veterans Claims Assistance Act (VCAA) have been satisfied.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). 

The United States Court of Appeals for Veterans Claims (Court) has held that the duties to notify and assist under the VCAA are relevant to Chapter 51 of Title 38 of the United States Code but do not apply in educational benefits situations, which are governed by Chapter 30 of Title 38.  See Barger v. Principi, 16 Vet. App. 132, 138 (2002); see also Lueras v. Principi, 18 Vet. App. 435 (2004) and Sims v. Nicholson, 19 Vet. App. 453 (2006).  

Nonetheless, the Board points out that the Veteran was provided during the course of the appeal with a copy of the decision denying the benefit claimed.  A Statement of the Case (SOC) in April 2011 responded to the arguments and assertions voiced in the Veteran's Notice of Disagreement, identified the evidence considered, and advised the Veteran of the reasons why the claim remained denied.     

The Veteran has been afforded a hearing before the Board, at which he presented testimony in support of his claim.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked.  Here, the VLJ identified the issue to the Veteran, who testified as to the reasons why he had believes he is entitled to payment or reimbursement for tutorial expenses.  The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.   The hearing focused on the elements necessary to substantiate the claim, and the Veteran provided testimony relevant to those elements.  As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time.

The Veteran has not asserted, and the file does not show, that there are any entities having additional evidence that should be pursued prior to appellate review.  The Board finds that under the circumstances the RO has satisfied any extant duties to notify and assist the Veteran, and that adjudication of the appeal at this point presents no risk of prejudice to the Veteran.  See e.g. Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  

Therefore, as all relevant evidence has been received, the Board may proceed with adjudication of the claim.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

Applicable Legal Principles

A veteran or eligible person may receive supplemental monetary assistance to provide tutorial services if he or she (1) is pursuing a post-secondary program on a half-time or more basis, and (2) has a deficiency in a subject that is indispensable to the satisfactory pursuit of an approved program of education.  38 U.S.C.A. § 3492 (West 2002); 38 C.F.R. § 21.4236(a) (2013).

VA will grant approval when (1) the educational institution certified that individualized tutorial assistance is essential to correct a deficiency in a subject that is indispensable to the satisfactory pursuit of an approved program of education, that the tutor selected is not related to the veteran or eligible person and that the charges for this assistance do not exceed the customary charges for such assistance; and, (2) the assistance is furnished on an individual basis.  38 C.F.R. § 21.4236(b).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

The Board has reviewed all the evidence in the education file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Evidence and Analysis

In his present claim, received in October 2010, the Veteran requested individualized tutorial assistance for the months August through December 2010.  Tutorial assistance would be provided in mathematics, in support of a course in calculus toward the final educational goal of mechanical engineering.  Tutorial assistance was to be provided four times per month, and the total charge for all four months would be $600.00.  The claim, submitted on VA Form 22-1990t (Application and Enrollment Certification for Individualized Tutorial Assistance), includes the signature of the tutor certifying that the service was being provided, that the charges are correct and that the tutor is not related to the Veteran.  Notably, the portion of the form requesting certification from the educational institution is blank.

The file contains a Change in Student Certification showing that the Veteran was increasing his course load during the August-December 2010 semester at the University of Texas at San Antonio (UTSA) from 2 credit hours to 4 credit hours.  The file also contains an Enrollment Summary documenting that fulltime study at that institution during the August-December 2010 semester consisted of 12 credit hours.

The Muskogee RO and Education Center issued the present denial in November 2010, explaining therein that tutorial assistance had been denied because the Veteran was shown to be training at less than half-time, whereas approval requires training at half-time or more. 

The Veteran asserts in his correspondence to VA and his testimony before the Board that he had been failing calculus at UTSA and therefore hired a tutor.  The Veteran stated that in addition to taking four credit hours at UTSA he was also taking six credit hours at a community college, so he was actually taking a full course load.  However, UTSA did not send a "parent letter" to the community college.  He stated that because of this omission by UTSA, he received no VA educational benefits for his community college classes, and then dropped those classes in the first month of the semester.  The Veteran also testified that it is difficult to deal with the VA and school hierarchies, especially since he has service-connected traumatic brain injury that causes reduced concentration and increased susceptibility to frustration.      

On review of the evidence above, the Board finds that a fulltime class load at UTSA was 12 credit hours, so a halftime class load would be 6 hours.  The Veteran took a 4 credit hour class load at UTSA, so tutorial assistance is precluded by the plain meaning of 38 C.F.R. § 21.4236(a).

The Board acknowledges the Veteran's contention that in addition to 4 credit hours at UTSA he was enrolled for 6 credit hours at a community college, making a total of 10 credit hours.  Unlike the Veteran's educational program at UTSA, which was duly approved by VA, there is no documentation that any community college classes were approved by either by VA or by UTSA as integral to the Veteran's approved program of instruction.   Further, the Veteran admitted during testimony that he dropped the community college courses early in the semester, so he does not appear in any case to have been actually taking more than 4 credit hours during the semester in question.  

The Board also acknowledges the Veteran's contention that VA should assist in paying for a tutor because his service-connected traumatic brain injury (TBI) makes it difficult for him to pass his course without such assistance.  Review of the Veteran's file in Virtual VA and the Veterans Benefits Management System (VBMS) confirms that the Veteran is service-connected for TBI, so associated functional impairments such as memory and concentration problems are duly compensated under the rating schedule.  There is no suggestion in 38 U.S.C.A. § 3492 or 38 C.F.R. § 21.4236 that tutorial assistance may be authorized to compensate for a service-connected disability when, as here, the claimant has not met the threshold requirement of at least half-time or more study.  While the Board is sympathetic toward the veteran, the Board is bound by law, and its decision is dictated by the relevant statutes and regulations; moreover, the Board is without authority to grant benefits simply because it might perceive such a grant to be equitable.  See Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  

In sum, the Veteran was not pursuing a post-secondary program on a half-time or more basis during the period in question.  Accordingly, the requirements for payment or reimbursement of tutorial assistance in Fall 2010 are not met and the claim must be denied.

Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply.  Gilbert, 1 Vet. App. 49, 55-56.


ORDER

Payment or reimbursement for tutorial assistance in the Fall of 2010 is denied.



____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs