M28C.IV.A.2 M28C.IV.A.2 Eligibility and Entitlement

2.01 Responsibilities

(Change Date August 15, 2013)

Eligibility period and basic entitlement to Chapter 31 services were established by 38 United States Code (U.S.C.) 3102 and 38 U.S.C. 3103. Duration of rehabilitation programs was established by 38 U.S.C. 3105.

Upon receipt of an application for Chapter 31 benefits, the Veteran Readiness and Employment (VR&E) staff will make the determination that the claimant meets all eligibility requirements for evaluation for Chapter 31 benefits.

2.02 Entitlement to Chapter 31 Benefits

(Change Date August 15, 2013)

Once a claimant is granted a compensable service connected disability (SCD) rating or memorandum rating establishing eligibility, the claimant must meet specific criteria for entitlement under one of the following conditions, in accordance with 38 CFR 21.40:

a. 10 percent Service-Connected Disability rating

(Change Date July 2, 2014)

The claimant must be granted an SCD or combined SCD rating of 10 percent.

The claimant must have incurred or aggravated the disability or disabilities while on active military service on or after September 16, 1940.

The claimant must be determined by a Vocational Rehabilitation Counselor (VRC) to be in need of rehabilitation services based on a serious employment handicap (SEH).

b. 20 percent or more Service-Connected Disability rating

(Change Date July 2, 2014)

The claimant must first be granted an SCD or combined SCD rating of 20 percent or more.

The claimant must have incurred or aggravated a disability or disabilities while on active military service on or after September 16, 1940.

The claimant must be determined by a VRC to be in need of rehabilitation services based on an employment handicap (EH).

c. Memorandum rating

(Change Date August 15, 2013)

A claimant will receive a memorandum rating when awaiting discharge from active military service, is hospitalized or receiving outpatient medical care, or services or treatment for a disability, and has been granted a temporary SCD or combined SCD rating with the following:

• The claimant must have been rated with at least 10 percent SCD and have originally applied for Chapter 31 benefits after March 31, 1981, and before November 1, 1990, or
• The claimant must have been rated with 20 percent SCD and have originally applied for Chapter 31 benefits after November 1, 1990, and

The claimant must have been determined by a VRC in need of rehabilitation services based on an EH.

Refer to M28C.III.B.2 for information on basic entitlement for seriously ill or injured and very seriously ill or injured Service member. Refer to M28C.IV.A.1 for information on establishing a memorandum rating.

A claimant must participate in a comprehensive initial evaluation in order to determine their entitlement to Chapter 31 benefits.

An entitlement determination is completed under one of two conditions:

The claim is processed for disallowance for failure to pursue.

The EH or SEH decision is made.

Refer to M28C.IV.B.1 for detailed information regarding the initial evaluation and entitlement determination process.

2.03 Basic Periods of Eligibility

a. Eligibility Period

(Change Date January 5, 2021)

A claimant has a 12-year eligibility period, from the claimant's last date of discharge or release from their active military service, to be eligible to receive Chapter 31 benefits, per 38 CFR 21.41.

b. Deferral and Extension of the Basic Period of Eligibility

(Change Date August 15, 2013)

The deferral or extension of a claimant’s period of eligibility is determined by a VRC, per 38 CFR 21.42, 21.44, 21.45, and 21.46.

1. Deferral of Eligibility Period

(Change Date August 15, 2013)

A claimant's basic period of eligibility may be deferred only when the claimant is prevented from starting a Chapter 31 program under one of the following circumstances per 38 CFR 21.42:

• (a) A Compensable Service-connected Disability is not Established

(Change Date August 15, 2013)

A claimant's basic period of eligibility cannot begin until the claimant is notified in writing of a rating decision for a compensable SCD or combined SCD rated 10% or more. The eligibility period begins on the day the VA notifies the claimant of his or her rating decision.

(b) The Character of Discharge imposes a Restriction on Benefits

(Change Date August 15, 2013)

A claimant's basic period of eligibility cannot begin if he or she does not meet the requirement for release with an honorable, general, or other than honorable discharge from the military, or the character of discharge is considered to be a bar to benefits.

A claimant's period of eligibility may begin only when the following conditions have been met:

(1) The claimant’s character of discharge or release has been changed by the appropriate authority, per 38 U.S.C. 3103, 38 U.S.C. 3105, 38 CFR 3.12, and 38 CFR 21.42.

(2) The VA determines that the claimant’s discharge or release is no longer a bar to benefits, per 38 CFR 3.12.

If the claimant's discharge is no longer barred from benefits, the claimant’s basic eligibility is effective the date of the determination or change in the character of discharge. The claimant will be eligible to apply for rehabilitation services.

(c) Claimant’s Participation is Prevented by Medical Conditions

(Change Date August 15, 2013)

A claimant's basic period of eligibility cannot begin if a VRC determines that the claimant’s ability to participate in the Chapter 31 Program is currently not reasonably feasible because of any medical condition(s) that may persist for 30 days or more. This may include but is not limited to any untreated, co-occurring, chronic, medical and mental health conditions, such as the disabling effects of persistent alcoholism, drug use, disease, chronic pain, physical impairment, and psychological health conditions that affect the general social and financial well-being of the claimant. The VRC must make every attempt to address these conditions that prevent employment through an extended evaluation only when appropriate.

The claimant's basic period of eligibility will commence on the date the VRC determines and notifies the claimant in writing that achievement of his or her vocational goal is currently reasonably feasible, or the claimant is now able to pursue an employment goal due to the claimant’s medical conditions, underlying conditions having been stabilized and cleared by a medical doctor to participate in a vocational rehabilitation program.

2. Extension of Eligibility Period

(Change Date August 15, 2013)

A claimant's period of eligibility may be extended if one of the following conditions exists:

• (a) Medical Condition(s)

(Change Date August 15, 2013)

A claimant's period of eligibility may be extended for the period in which the claimant is unable to participate in a vocational program in which the claimant is unable to program for 30 days or more due to medical conditions per 38 CFR 21.42.

The medical conditions also include chronic alcoholism that causes disabling effects, such as alcohol-induced physical and/or mental disorders, except for willful misconduct.

If the claimant's participation in the Chapter 31 program is delayed or interrupted due to any medical condition, the extension of the claimant’s eligibility period will begin or resume on the date the claimant is notified in writing that the VRC determined that the claimant is capable of continuing his or her participation in a program of rehabilitation services.

(b) Serious Employment Handicap

(Change Date August 15, 2013)

The period of eligibility may be extended for a claimant who has been determined with an SEH and is participating in a program of IL services per 38 CFR 21.44.

The VRC determines the number of months for extension of the claimant's eligibility period based on his or her needs for a program of rehabilitation services.

The claimant's period extension eligibility may be extended if he or she is determined with an EH and an SEH and his or her need for rehabilitation services and assistance necessitate extension of his or her eligibility period to achieve his or her vocational goal.

For a claimant who has been previously rehabilitated to the point of employability, the decision for extension of the eligibility period is applicable at the time the claimant is determined in need of the services to overcome the significant impairments of employability.

(c) Program of Independent Living Services

(Change Date August 15, 2013)

A VRC may extend a claimant’s period of eligibility for a claimant who is receiving IL services or assistance if the VRC determines that he or she has an SEH and that an extension of his or her eligibility period is necessary to achieve or maximize his or her independence in daily living, per 38 CFR 21.45.

The period of eligibility may be extended for the duration that the VRC determines necessary for the claimant to achieve the IL goal.

(d) Recall to Active Duty

(Change Date August 15, 2013)

The period of eligibility may be extended for a claimant who has been recalled or ordered to serve on active duty. Recall to active duty for Reserve Components is under the authorities of 10 U.S.C. 688, 12301(a), 12301(g), 12302, 12304, 12304a, and 12304b per Pub. L. 115-48.402, 38 U.S.C. 3103 and 38 CFR 21.46.

The extension of the eligibility period includes the length of time that the claimant served in active duty during the recall, plus four months.

(e) Emergency Situations

(Change Date January 5, 2023)

P.L. 117-333, section 3 defined an emergency situation under 38 U.S.C. 3601 as a situation that:

• The President declares is an emergency, and

The Secretary determines is an emergency for purposes of the laws administered by the Secretary.

It also added 38 U.S.C 3103(h), that states, a claimant’s period of eligibility to participate in a rehabilitation program may be extended as follows:

• shall not run during the period the individual is so prevented from participating such program; and

shall again begin running on the first day after the individual is able to resume participation in such program.

(f) Other Reasons determined by VR&E

(Change Date December 29, 2022)

P.L. 117-328, section 233 added 38 U.S.C 3103(h)(1)1, to state that a claimant’s period of eligibility to participate in a rehabilitation program may be extended based on one of the following reasons:

(1) Temporary or permanent closure of an education institution due to an emergency situation.

(2) Another reason determined by the VRC, which prevents the claimant from participating in a vocational rehabilitation program.

The extension for the period of eligibility begins on the date that the claimant is prevented from participating in the vocational rehabilitation program and ends on the date determined by the VRC that:

• is not earlier than the first day after the claimant can resume participation, and

is not later than 90 days from the first day that the claimant can resume participation.

c. Services Prior to Discharge

(Change Date August 15, 2013)

A Service member determined entitled to services prior to his or her discharge from active duty may receive vocational rehabilitation services, but his or her period of basic eligibility begins on the date of his or her discharge from active military service. The requirements for the basic period of eligibility do not apply to the administration of vocational rehabilitation services while the claimant is on active duty. Refer to M28C.III.B.2 and 38 CFR 21.41 for detailed information about eligibility and entitlement for Service members.

d. More than one Period of Military Service

(Change Date November 11, 2023)

The eligibility period for a claimant who has more than one period of military service and applies for Chapter 31 starts from the date of his or her most recent honorable or other than dishonorable discharge.

If the last character of the claimant's discharge is dishonorable, the claimant may be provided Chapter 31 benefits for the 12-year period that began from the date of his or her most recent honorable or other dishonorable discharge.

2.04 Eligibility and Entitlement for Employment Assistance

a. Criteria for Employment Assistance

(Change Date August 1, 2012)

1. Claimant entitled to participate in the Chapter 31 Program

Any claimant who is determined eligible and entitled to participate in a rehabilitation program under 38 U.S.C. 3102 may receive employment services, except for a claimant who has been determined in need of a program of independent living services.

A claimant may be provided employment services based on one of the following criteria:

(a) A claimant has completed a Chapter 31 program of rehabilitation services and has been declared rehabilitated to the point of employability and has been determined employable in a suitable occupation.

(b) A claimant has not completed a period of rehabilitation to the point of employability under Chapter 31 but elected to secure employment without completing the period of rehabilitation to the point of employability and has been determined employable in a suitable occupation.

(c) A claimant has never received services for rehabilitation to the point of employability under Chapter 31 but has been determined employable in a suitable occupation, has an employment handicap or a serious employment handicap, and needs employment services to obtain or maintain suitable employment.

2. A claimant who previously participated in a vocational rehabilitation program under Chapter 31 or a similar program under the Rehabilitation Act of 1973, as amended.

In accordance with 38 U.S.C. 3117, a claimant may be provided limited employment assistance if he or she previously participated in a vocational rehabilitation program under Chapter 31, or a similar program under the Rehabilitation Act of 1973, as amended, even though he or she is ineligible for any other assistance under Chapter 31.

A claimant may be provided limited plan of employment services based on one of the following criteria:

(a) A claimant completed a vocational rehabilitation program under the Chapter 31 program or participated in such a program for at least 90 days, has been determined entitled to Chapter 31 benefits, and is employable in a suitable occupation. This does not apply to a claimant who reapplies for Chapter 31 benefits but the reasons for the previous discontinuance cannot be removed.

(b) A claimant has completed a vocational rehabilitation program under the Rehabilitation Act of 1973 or participated in such a program that included at least 90 days of post-secondary education or vocational training, meets the eligibility criteria described in 38 CFR 21.40, and has been determined employable in a suitable occupation.

3. A claimant who does not meet the entitlement criteria for Chapter 31 and has never before participated in a vocational rehabilitation program under Chapter 31 or under the Rehabilitation Act of 1973, cannot be provided employment assistance under Chapter 31.

b. Duration for the Period of Employment Assistance

(Change Date November 20, 2024)

A claimant who has completed a vocational training program and is determined employable in a suitable occupation may be provided a period of employment assistance or services.

1. The period for providing employment assistance or services is not subject to the required eligibility period described in 38 CFR 21.41 through 21.45. This means that a claimant may continue to receive employment assistance after his or her 12-year eligibility period expires.

2. The period for employment assistance is not charged against a claimant’s Chapter 31 entitlement. This means that a claimant who has exhausted 48 months of his or her entitlement may continue to receive employment services.

3. The period of employment assistance for claimants found entitled under 38 U.S.C. 3102 is limited to 18 months under the provisions of 38 CFR Sec 21.73. This means that the period of employment services must not exceed 18 months even in instances, such as the 60-day follow-up period after a claimant obtained employment has not been completed, or there was a lapse in providing the monthly case management appointments to the claimant.

However, the 18-month period may be extended only if the President and the VA Secretary declare an emergency situation under the provision of 38 U.S.C. 3601 and as discussed in section 2.04.c of this chapter .

4. The limited period of employment assistance of 18 months does not apply to employment assistance provided under 38 U.S.C. 3117.

c. Special Circumstance for Extension of the Period of Employment Assistance

(Change Date November 20, 2024)

The 18-month limitation for employment services may be extended only if a claimant is unable to participate in employment services during a period of an emergency situation declared by the President and the VA Secretary as prescribed in 38 U.S.C. 3601.

This means that a period of employment services may be added to the 18 months that is equivalent to the number of days or months that the claimant is unable to participate in employment services due to the emergency situation.

Refer to the Glossary of Terms for definition of emergency situation.

2.05 Changes in Service Connection

(Change Date August 15, 2013)

Changes in a claimant’s rating decision will affect his or her entitlement to Chapter 31 benefits. The VRC must take necessary actions when one of the following changes occurs, per 38 CFR 21.48:

a. Severance of the Service-Connected Disability Rating

(Change Date May 21, 2021)

A claimant’s participation in a rehabilitation program must be terminated when his or her SCD rating has been severed. A case in Applicant (APP) status or Evaluation and Planning (EP) status must placed in Discontinued (DIS) status effective the date VR&E is notified of the severance of the claimant's SCD rating. A case in Extended Evaluation (EE) status, Independent Living (IL) status, Rehabilitation To the point of Employability (RTE) status, Interrupted (INT) status, or Job Ready (JR) status must be placed in DIS status effective the last calendar day of the month that the service-connection of the claimant’s disability is severed. Refer to M28C.III.A.1.02 for procedures for updating case status.

The VRC must send VR-58, Chapter 31 Adverse Decision Letter and VAF 20-0998, Your Rights to Seek Further Review of our Decision to inform the claimant and his or her designated representative, if applicable, that Chapter 31 benefits have been terminated per 38 U.S.C. 3103 and 38 CFR 21.40.

b. Reduction to Non-Compensable Service-connected Disability or 0 Percent Rating in a Plan of Services

(Change Date May 21, 2021)

When a claimant’s rating has been reduced to non-compensable or 0 percent while he or she is participating in a plan of services, the claimant may continue to participate until he or she completes or discontinues participation in the program. However, if the claimant’s case has been placed in Discontinued or Rehabilitated status and the claimant reapplies, he or she will not be eligible to reenter the program.

c. Reduction to Non-compensable Service-connected Disability or 0 Percent Rating in Applicant Status and Evaluation and Planning Status

(Change Date May 21, 2021)

When a claimant’s SCD rating is reduced to a non-compensable or 0 percent rating while his or her case remains in Applicant status or Evaluation and Planning status, all claims processes must be terminated effective immediately and deny his or her claim. The VRC must send VR-58 and VAF 20-0998 to inform the claimant and his or her designated representative, if applicable, that processing of his or her claim has been terminated per 38 U.S.C. 3103 and 38 CFR 21.40.

2.06 Entitlement Limitations, Extensions, and Restoration

(Change Date April 1, 2021)

Claimants who train under VA education programs, including under more than one chapter of the law, and/or have transferred entitlement to educational assistance, are limited in their total period of entitlement in accordance with 38 U.S.C. 3105, 38 U.S.C. 3322, 38 U.S.C. 3695 and 38 CFR 21.4020. The Chapter 31 entitlement used by a claimant will not be deducted from his or her potential entitlement under other VA education programs. However, VR&E will deduct entitlement used in other VA education programs from a claimant's potential 48 months of Chapter 31 entitlement.

a. Entitlement Limitations

(Change Date April 1, 2021)

The total period for which a claimant may receive a program of rehabilitation under Chapter 31 alone shall not exceed 48 months, except as outlined in section 2.06.b of this chapter, per 38 CFR 21.78.

b. Entitlement Extensions

(Change Date December 27, 2012)

38 CFR 21.78 provides the authority to extend a claimant's entitlement to Chapter 31 benefits. This includes any claimant who previously utilized education benefits outlined in M28C.IV.B.1 and is currently participating in the Chapter 31 program. The extension that will exceed the 48-month limitation must be determined necessary to achieve the claimant’s rehabilitation goal.

The criteria for an extension of entitlement that will exceed the 48-month period for Chapter 31 benefits are outlined below:

1. Claimants Determined with an Employment Handicap

(Change Date March 31, 2014)

A rehabilitation program for a claimant with an EH may be extended beyond 48 months under any of the following:

(a) The claimant previously completed training in an occupational field, but the claimant’s service-connected disability(ies) worsened to the point that performing the duties of that occupation is no longer feasible, and a period of retraining in the same or a different field is necessary. An extension beyond 48 months under Chapter 31 alone shall be authorized for this purpose, per 38 U.S.C. 3105(c)(1)(A) and 38 CFR 21.78.

(b) The occupation the claimant previously trained for is found to be unsuitable due to the claimant’s functional limitations. An extension beyond 48 months under Chapter 31 alone shall be authorized for this purpose, per 38 U.S.C. 3105(c)(1)(B) and 38 CFR 21.78.

(c) The claimant previously utilized VA education benefits, and the additional period of assistance under Chapter 31 needed for the claimant to become employable will result in more than 48 months being used under all VA education benefits. Under these conditions the number of months necessary to complete the program may be authorized under Chapter 31, provided the length of the extension will not result in authorization of more than 48 months under Chapter 31 alone, per 38 U.S.C. 3695 and 38 CFR 21.78.

(d) A claimant in an approved Chapter 31 program has elected payment at the Chapter 30 educational assistance rate. Per 38 U.S.C. 3013, 38 U.S.C. 3695, Pub. L. 98-525, and 38 CFR 21.78, the 48-month limitation may only be exceeded:

1) If the entitlement in excess of 48 months does not exceed the entitlement previously used by the claimant in a course at the secondary school level before December 31, 1989.

2) If the claimant is training in a course on a term, quarter, or semester basis, which began before the 36-month limitation on Chapter 30 entitlement was reached, and completion of the course will allow the claimant to complete the training under Chapter 31.

(e) The assistance to be provided in excess of 48 months consists only of a period of employment assistance, per 38 U.S.C. 3105(b), 38 CFR 21.73, and 38 CFR 21.07.

2. Claimants Determined with a Serious Employment Handicap

(Change Date March 31, 2014)

In accordance with 38 U.S.C. 3105(c)(2) and 38 CFR 21.78, the duration of a rehabilitation program for a claimant determined with an SEH may be extended to exceed 48 months under Chapter 31 based on the number of months needed by the claimant to complete his or her rehabilitation under any of the following conditions:

(a) To enable the claimant to complete a period of rehabilitation to the point of employability.

(b) To provide an extended evaluation, in which the total period needed for the extended evaluation and rehabilitation to the point of employability, can be completed by the claimant.

(c) To provide a program of Independent Living (IL) services, including instances in which an achievement of a vocational goal becomes feasible as a result of the IL services.

(d) After rehabilitation to the point of employability and additional training:

(1) The claimant is unable to secure employment in the occupation he or she was trained for, despite intensive efforts by the VRC and claimant, and a period of retraining or additional training is needed.

(2)The claimant's skills developed in training for the occupation in which he or she was employed are no longer adequate to maintain employment in that field, and additional training is needed..

(3) The claimant’s service-connected disability(ies) SCD have worsened to the point that he or she cannot perform the duties of the occupation he or she was trained for, and a period of training in the same or different field is needed. .

(4) The occupation, in which the claimant was previously trained for is determined unsuitable due to his or her abilities and employment handicap, and additional training is needed. .

(e) The assistance provided in excess of 48 months consists solely of employment assistance.

3. Other Considerations for Entitlement Extension

(a) Transferred Entitlement - The claimant's transferred entitlement from another VA education benefit(s) to his or her dependent(s) must be reviewed to ensure that the amount of extension is sufficient for the claimant to complete his or her rehabilitation program.

(b) Period of Employment Services - The 18-month period of employment assistance is not charged against the 48-month entitlement under Chapter 31 per 38 CFR 21.73. Therefore, this period must not be included when calculating extension of entitlement.

(c) Expiration of Eligibility Termination Date - Extension of entitlement for a claimant, who has been determined with an EH only and discharged from active duty prior to January 1, 2013, must not exceed his or her ETD.

4. Approval of Entitlement Extension

(Change Date August 16, 2024)

In accordance with 38 CFR 21.78, all extensions of Chapter 31 benefits exceeding 48 months of total entitlement require the approval of the VR&E Officer or his or her designee.

Factors, such as justification for the approval, the number of months requested, the anticipated completion date of the claimant’s rehabilitation, and any additional information specified by the VR&E Officer or his or her designee must be included in a memorandum request for approval.

The request must be submitted using Appendix DS, Request for Entitlement Extension or Restoration of Entitlement. The VR&E Officer or his or her designee must sign the approval and the signed approval must be placed in the claimant's electronic record. Instructions for completing the appendix are provided at the bottom of the appendix. Entitlement extensions must be approved by the VR&E Officer or his or her designee, during plan development/redevelopment before the new or amended plan is implemented. Per 38 CFR 21.72(c), prior to the claimant starting and continuing in his or her approved training program, it is the responsibility of the VRC to ensure that there is sufficient entitlement available and approved entitlement extension is reflected in the claimant’s GED record and in CWINRS Award tab.

c. Restoration of Entitlement

(Change Date April 26, 2023)

Public Law 116-315, the Johnny Isakson and David P. Roe, M.D., Veterans Health Care and Benefits Improvement Act of 2020, provided VR&E with the authority to restore entitlement to claimants who are attending a facility that closes or loses VA approval.

When a program of training or course loses VA approval or the facility closes, the VRC must notify all claimants affected using VR-78, Notification of Facility, Program of Training, or Course Disapproval, or VR-79, for Notification of Facility Closure. If a facility loses approval for a program of training or course, the VRC must not approve any further training for the disapproved program or course. The VRC must check WEAMS prior to a rehabilitation plan development to ensure the program or course is approved.

Restoration of Entitlement due to a Facility Closure or Program of Training or Course Disapproval due to a Change in Law, Regulation or Policy

(Change Date October 06, 2023)

Effective August 1, 2021, through September 30, 2025, if a facility closes or loses its approval for VA use, the claimant loses credit and is not able to transfer at least 12 credits to a new facility, the claimant’s entire entitlement used at the facility that was closed or disapproved in which the claimant received a subsistence allowance payment may be restored, per 38 U.S.C. 3699(c)(2)(C).

When a facility closes or a program of training or course disapproval is due to a change in law, regulation or policy, VR&E may:

Continue to pay subsistence allowance until the end of the semester or term or 120 days from the date of the closure or disapproval whichever is sooner in accordance with 38 U.S.C 3680(a)(2)(B). Refer to M28C.V.B.7.10.a.2 for guidance on paying subsistence allowance for a facility closure or disapproval.

Restore entitlement if a claimant did not receive credit or lost training time toward completion of the program of training or course being pursued per 38 U.S.C. 3699(c)(1)(A) if the claimant was enrolled in the facility within 120 days of closure.

Any terms that are restored are not charged against entitlement.

VR&E can provide restoration of entitlement if the claimant:

• Lost credits and is not able to transfer at least 12 credits to a new facility, and

His or her last enrollment period was within 120 days of the facility closure or disapproval.

Public Law 117-297, Veterans Eligible to Transfer School (VETS) Credit Act, has also made it easier to apply for restoration of entitlement. For any covered closure or disapproved after December 27, 2022, the claimant does not need to enroll in a new facility prior to applying for restoration of entitlement. The claimant will have to show he or she was unable to transfer 12 or more credits to a new facility before restoration of entitlement may be granted.

To request restoration of entitlement the claimant must submit completed VAF 28-10281, Request for Restoration of Entitlement due to Facility Closure, Program or Training or Course Disapproval. To grant the Restoration of Entitlement the VRC must verify the claimant applied to a new facility or training program and is unable to transfer 12 or more credits based off a copy of the acceptance letter and degree audit.

The following examples provide additional clarity on restoration of entitlement.

Example 1:

A claimant was enrolled in a computer science program since September 2021. The last enrollment period certified by the facility was May 2022. The facility closed effective June 2, 2022. The claimant transfers to a new school and is only able to transfer 9 credits into the new program. The claimant would qualify for restoration of entitlement for his or her entire program in this example.

Example 2:

A claimant was enrolled in a computer science program since August 2019. The last enrollment period certified by the facility was spring 2020, enrollment from 01/05/2020 to 05/12/2020. The computer science program was disapproved effective 04/20/2020. The claimant transfers to a new school on 08/23/22 and only 5 credits transferred from the old program to the new school. The claimant requests restoration of entitlement for the prior disapproved program. The claimant does not qualify for restoration of entitlement since the previous enrollment was prior to August 1, 2021.

The VRC must evaluate and determine whether the claimant meets the criteria for restoration of entitlement. If the claimant meets the criteria the VRC must:

• Complete Appendix DS, Request for Entitlement Extension or Restoration of Entitlement,
• Obtain concurrence from the VR&E Officer,
• Place a copy of Appendix DS in the claimant’s electronic record,
• Inform the claimant of the restoration of entitlement via VR-77, Restoration of Entitlement, and

Place a copy of the letter in the claimant’s electronic record.

If the claimant does not meet the criteria for restoration of entitlement, the VRC must:

• Notify the claimant via VR-58. The letter must include VA Form (VAF) 20-0998, Your Rights to Seek Further Review of our Decision, and

Place a copy of the letter in the claimant’s electronic record.

If a claimant’s program becomes disapproved as a result of a change in law, regulation, or policy as indicated in 38 U.S.C. 3699(d)(1)(A), the claimant may continue in the disapproved program. The VRC must determine whether continuing in the program is in the best interest of the claimant as specified in 38 U.S.C. 3699(d)(1)(B), and the determination must be documented in an electronic case note. The claimant must have already started the program at the time of disapproval.

Facility Closures or Program of Training or Course Disapproval from January 1, 2015, through August 16, 2017

(Change Date April 26, 2023)

The Act also included a retroactive provision for facilities that closed on or after January 1, 2015. This provision aligns VR&E’s authority with the authority that was granted to other VA education benefits in section 109 (c) of the Colmery Act, thus the retroactive date.

If the claimant is unable to transfer credits, he or she may have all of his or her entitlement restored that was not transferred.

To request restoration of entitlement the claimant must:

• Enroll at a new facility,
• Obtain a degree audit from the new facility to determine the number of credits that will be accepted into the new program, and

Submit completed VAF 28-10281, Request for Restoration of Entitlement due to Facility Closure, Program of Training or Course Disapproval, provide a copy of the acceptance letter and degree audit with request.

The VRC must evaluate and determine whether the claimant meets the criteria for restoration of entitlement.

If the claimant meets the criteria the VRC must:

• Complete Appendix DS, Request for Entitlement Extension or Restoration of Entitlement,
• Obtain concurrence from the VR&E Officer,
• Place a copy of Appendix DS in the claimant’s electronic record,
• Inform-the claimant of the restoration of entitlement via VR-77, Restoration of Entitlement, and

Place a copy of the letter in the claimant’s electronic record.

If the claimant does not meet the criteria for restoration of entitlement, the VRC must:

• Notify the claimant via VR-58. The letter must include VA Form (VAF) 20-0998, Your Rights to Seek Further Review of our Decision, and

Place a copy of the letter in the claimant’s electronic record.