UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 95-1136

JACKIE C. WEST, APPELLANT,

V.

ANTHONY J. PRINCIPI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided October 24, 2001 )

Jackie C. West, pro se.

Leigh A. Bradley, General Counsel; Ron Garvin, Assistant General Counsel; Jacqueline M.

Sims, DeputyAssistant General Counsel; and Yvette Robertson White, all of Washington, D.C., were

on the pleadings for the appellee.

Before KRAMER, Chief Judge, and HOLDAWAY and IVERS, Judges.

IVERS, Judge, filed the opinion of the Court. KRAMER, Chief Judge, filed an opinion

concurring in part and dissenting in part.

IVERS, Judge: In a decision dated November 8, 1995, the Board of Veterans' Appeals (BVA

or Board) denied veteran JackieC. West's claim, filed pursuant to the provisions of the order entered

by the United States District Court in Pacheco v. Department of Veterans Affairs, No. C83-3098

(N.D. Ohio 1991) (Pacheco Order or Settlement), for entitlement to educational assistance under 

Chapter 34, Title 38, United States Code. See Record (R.) at 93-105. As discussed below, the

Court's jurisdiction to review this matter is established by 38 U.S.C. § 7252. For the reasons

contained herein, the Court will affirm the Board's November 1995 decision.

I. FACTS

The consent order issued in Pacheco permitted "certain Vietnam-era veterans who pursued
2

a course or courses in an approved associate degree program predominately vocational in content

at any time during the period January 1, 1982, through December 31, 1984, to obtain Chapter 34

educational benefits." R. at 93; see 38 U.S.C. §§ 3461 and 3462. Certain provisions of Chapter 34

permit extensions of time periods, called delimiting periods, for using the statutory educational

benefits. See 38 U.S.C. §3462(a). The Pacheco Order, dated August 20, 1991, settled litigation that

had arisen from a VA policy of denying delimiting period extensions to veterans pursuing courses

as part of associate degree programs. See R. at 8.

In pertinent part, the Pacheco Order required VA to "post leaflets concerning this order, and

make leaflets available, in all VA Regional Offices and in all VA Vet Centers." R. at 99. The

leaflets were to contain specific information for filing a claim pursuant to the Order, and were to be

"posted[, with] a supply of leaflets [to] be conspicuously displayed at all times in each waiting room

of each such facility for at least 12 months after the date of this order." Id.; see R. at 96, paragraph

2.(b).

The original claim for veterans benefits that underlies this appeal was initiated when the

veteran submitted a "Pacheco Claim Letter," apparently the above-referenced leaflet, or a part of it,

to VA in August 1992. R. at 107. The veteran sought to "claim retroactive payment of VA

educational benefits under the Pacheco settlement." Id. His eligibility for Chapter 34 educational

benefits had been established, and he had received benefits from July 1980 to August 1980. R. at

89; see also R. at 7, 12.

In a letter dated September 1992, a VA regional office (RO) informed the veteran that his

claim for educational benefits under the Pacheco Settlement had been denied. R. at 121. In

pertinent part, the letter read as follows:

To be eligible for benefits under this Settlement, your normal

delimiting period for using your educational benefits following

discharge from service must have expired before December 31, 1984.

(A delimiting period is normally the ten years following a veteran's

discharge from active duty.) Our records reflect that your delimiting

period ended on April 25, 1988. Since you would not have needed an

extension of your delimiting period in order to pursue training, you

are not eligible for benefits under the Pacheco Settlement.

Id.
3

Afterreceiving the letter from the RO, the veteran sought review at the Board. See R. at 137-

41; see also R. at 101 (provisions of Pacheco Order for adjudication of claims pursuant to VA

policies and procedures consistent with title 38 of the U.S. Code). In the decision now on appeal,

the Board likewise found that the veteran was not entitled to the relief afforded by the Pacheco

Settlement because he did not meet the legal criteria for eligibility. R. at 7-9. At the outset of its

decision, the Board noted that the Pacheco Order included the mandate that "[n]o decision on a

claim made under this ordershall be brought to the [U.S. Court of Appeals for Veterans Claims] for

review." R. at 101-02; see R. at 5. The Board concluded that it would "advise the veteran of the

procedures for obtaining review of the Board's decision in this matter by the [Court] as required by

law," while also advising him that the Pacheco Order provided that he was barred from seeking

review by the Court. R. at 5-6.

II. ANALYSIS

A. Jurisdiction

In light of the questions left open in the Board's decision concerning jurisdiction, we must

initially clarify the role of this forum and that of the U.S. District Court for the Northern District of

Ohio (District Court) in this matter. Each court is a federal court with separately defined jurisdiction.

See Skinner v. Derwinski, 1 Vet.App. 2, 3 (1990) (any federal court inferior to the Supreme Court

exercises jurisdiction only as authorized by Congress). The District Court has jurisdiction to hear

a facial challenge to a veterans benefits statute, but not a challenge to a denial of benefits under any

veterans benefits statutes. Zuspann v. Brown, 60 F.3d 1156, 1158-61 (5 Cir. 1995), cert. denied th

516 U.S. 1111, 116 S.Ct. 909 (1996). This Court is empowered, under the Veterans' Judicial Review

Act (VJRA), to exercise exclusive jurisdiction over appeals concerning denials of veterans benefits.

Id. at 1158-59; see Pub. L. No. 100-687, 102 Stat. 4105 (1988); 38 U.S.C. § 7252.

When the District Court entered judgment based on the Pacheco Order, it ratified an out-ofcourt settlement that had been reached by the parties. The Pacheco consent order indicates that the

underlying litigation had been a class action law suit that challenged a veterans educational benefits

statute on its face. See R. at 104. The litigation commenced years prior to the VJRA and the

establishment of this Court as the primary judicial forum for resolving matters involving veterans
4

benefits. Id. (showing that class was certified in 1985). Nothing in the final Pacheco Order or the

law concerning the District Court's jurisdiction compels this Court to question the validity or

enforceability of the provisions of that order concerning Chapter 34 extensions of delimiting dates

(or periods) with respect to approved associate degree programs. See Zuspann, supra.

The provisions of the Pacheco Order concerning this Court's jurisdiction, however, are null

and void. The District Court overstepped its limited jurisdiction when it directed that Pacheco

claimants were barred from seeking this Court's review of a BVA denial of individual Pacheco

claims. See Zuspann and Skinner, both supra; R. at 101-02, 104-05. Since this Court has "exclusive

jurisdiction to review decisions of the [BVA]," we will proceed to consider the November 8, 1995,

BVA decision that is the subject of this appeal. 38 U.S.C. § 7252.

B. Denial of Pacheco Claim

To be eligible for VA educational benefits pursuant to the Pacheco Order, the veteran would

have had to have met the eligibility criteria set forth in that order. The Pacheco Order stated the

following eligibility criteria:

The Vietnam-era veterans entitled to claim Chapter 34 educational

benefits under this order are:

(i) All Vietnam-era veterans who applied to VA for a

delimiting date extension during the VA extension policy period, who

pursued a course or courses in an approved associate degree program

at any time during the period the delimiting date extension provisions

were in effect, but who were denied an extension by VA solely

because of the VA extension policy; and

(ii) All Vietnam-era veterans who pursued a course or courses

in an approved associate degree program at any time during the

period the delimiting date extension provisions were in effect, but

who did not apply to VA for a delimiting date extension during the

VA extension policy period solely because of the VA extension

policy.

R. at 95-96. The order further provided that payment of benefits for those eligible for an extension

under the terms of the order would be limited to courses pursued "during the period from January

1, 1982, through June 30, 1985." R. at 98.

The Board stated the following reasons and bases for its conclusion that the veteran was not
5

eligible for benefits pursuant to Pacheco:

[T]he veteran's delimiting period was not to expire until April 24,

1988. Therefore, the veteran did not need to seek an extension of

Chapter 34 entitlement since [his entitlement] was not in jeopardy of

termination due to expiration of his delimiting date. As such, he has

not met the threshold definition of a veteran entitled to make a claim

for Chapter 34 benefits under the Pacheco Order. The remedy

provided under that Order was designed to include only those

veterans who would have otherwise been entitled to an extension of

their delimiting dates for the purpose of applying their unused

Chapter 34 entitlement toward courses in an associate degree program

between January 1982 and December 1984 had the VA policy

allowed extensions for course work in associate degree programs

during that period. In other words, the veteran cannot claim that he

has been injured by the prior VA policy which the Pacheco Order

addressed since his delimiting date had not even expired during the

period in question.

R. at 8-9.

The determination by the Board that the veteran did not meet the Pacheco eligibility criteria

was a factual determination. Factual findings by the Board will not be overturned by this Court

unless they are "clearly erroneous." 38 U.S.C. § 7261(a)(4); Gilbert v. Derwinski, 1 Vet.App. 49,

53 (1990). Under the “clearly erroneous” standard, "if there is a 'plausible' basis in the record for the

factual determinations of the BVA, even if this Court might not have reached the same factual

determinations, [the Court] cannot overturn them." Id.

The Court finds that there was a plausible basis in the record for the Board's denial of the

veteran's Pacheco claim, and that the Board's decision was not "clearly erroneous." The denial is

supported by the facts that the veteran's available delimiting period extension was to April 1988, and

the Pacheco Order applied only to courses pursued through June 30, 1985. The Board correctly

found that the veteran's entitlement to Chapter 34 educational benefits was not in jeopardy of

termination due to expiration of his delimiting date, and that he was not in the class of veterans that

the Order was intended to protect.

The Court notes that the Board referred to the RO the matter of whether the veteran was

entitled to "an extension of eligibility for vocational rehabilitation training under the provisions of

Chapter 31, Title 38, United States Code, and 38 C.F.R. § 21.42(c)(1) (1994) because of his medical
6

condition." R. at 6.

III. CONCLUSION

Accordingly, the Secretary's motion to dismiss is denied, and the November 8, 1995, BVA

decision is AFFIRMED.

KRAMER, Chief Judge, concurring in part and dissenting in part: For the reasons set forth

below, I agree with the majority's conclusion as to this Court's jurisdiction over the instant appeal

and with the majority's conclusion that the appellant is not eligible for educational benefits pursuant

to the Pacheco order, but I otherwise dissent.

As to the jurisdictional issue, because the appellant is seeking review of a Board of Veterans'

Appeals (Board or BVA) decision that denied VA educational assistance under title 38 of the U.S.

Code, I agree with the majority that this Court has jurisdiction over the appeal. See 38 U.S.C.

§§ 7252(a) (this Court "shall have exclusive jurisdiction to review decisions of the [Board]"),

7266(a); see also 38 U.S.C. § 7104(a) (jurisdiction of the Board). Based on that, I believe that it is

unnecessary to address, as the majority has done, whether the United States District Court for the

Northern District of Ohio (District Court) would have jurisdiction to limit this Court's review of

"claim[s] made under [the Pacheco] Order." Record (R.) at 101-02. Moreover,I note that, although

the majority, in addressing the District Court's exercise of jurisdiction, purports to hold that "[t]he

provisions of the [District Court's] Pacheco Order concerning this Court's jurisdiction . . . are null

and void," ante at __, slip op. at 4, the majority has not provided any citations or analysis suggesting

that this Court has the authority to so hold. 

As to the merits of the appellant's claim, I initially note that the Board characterized the issue

as whether the appellant was "entitl[ed] to any VA benefits under the terms of the Pacheco Order."

R. at 9;see also ante at __, slip op. at 4 (majority characterized issue on appeal as whether appellant

is "eligible for VA educational benefits pursuant to the Pacheco Order"). Under the Pacheco Order,

a claimant may be awarded educational benefits for qualifying courses (taken during the period from

January 1982 to June 1985) if it is determined that the claimant is eligible, under the terms of that

order, for an extension of his delimiting date. R. at 98. Here, the appellant did express his desire

to obtain educational benefits "under the Pacheco Settlement," but he also indicated that he was
7

seeking "retroactive payment of VA educational benefits" and provided information as to a course

that he had taken in 1982. R. at 107, 114-15. Particularly considering the pro-claimant nature of the

VA benefits system (see Nolen v. Gober, 222 F.3d 1356, 1361 (Fed. Cir. 2000)), and that the

appellant's 1982 course was taken prior to the expiration of his delimiting period (see 38 U.S.C.

§ 3462(a)(1) (delimiting period for VA educational assistance is 10 years after veteran's last release

from active duty); R. at 12 (reflecting appellant's release from active duty in April 1978)), I believe

that the Board far too narrowly construed the appellant's claim by treating it as though he were

seeking only an extension of his delimiting date under the Pacheco Order. Rather, the Board should

have addressed whether the appellant is entitled to VA educational assistance under any applicable

laws and regulations, including whether he is entitled to reimbursement for educational expenses

incurred in connection with his 1982 class. See Perry v. West, 12 Vet.App. 365, 368 (1999) ("VA

is required to apply all relevant law in the claim, even though the legal issue was not raised by the

appellant"); Talbert v. Brown, 7 Vet.App. 352, 356 (1995) (BVA must review all issues that are

reasonably raised); EF v. Derwinski, 1 Vet.App. 324, 326 (1991).

Because the BVA adjudicated only whether the appellant was entitled to the relief provided

for in the Pacheco order, I believe a remand is necessary in order for the Board to readjudicate the

appellant's claim, as more broadly characterized. See 38 U.S.C. § 7104(d)(1); Allday v. Brown,

7 Vet.App. 517, 527; Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990) (Board is required to provide

written statement of reasons or bases for its findings and conclusions on all material issues of fact

and law presented on record; statement must be adequate to enable claimant to understand precise

basis for Board's decision, as well as to facilitate review in this Court). In addressing that claim, I

believe that the BVA should also consider whether the appellant's October 1993 correspondence to

a VA regional office (RO) constituted a request for an extension of time, predicated upon his medical

condition, to file his application for VA educational assistance, under chapter 34 of title 38, U.S.

Code, for his 1982 course. See R. at 132-33 (appellant's statement that he was not able to use

educational funds because of disabilities); 38 C.F.R. § 21.1032(e) (2000) (VA may extend for good

cause time limit within which claimant is required to act to perfect claim for educational assistance).

In that regard, I note that the Board, in its November 1995 decision, referred to the RO the issue of

the appellant's entitlement to "an extension of eligibility for vocational rehabilitation training under
8

the provisions of Chapter 31, Title 38, United States Code, and 38 C.F.R. § 21.42(c)(1) (1994)

because of his medical condition" (R. at 6); however, it is not clear from the BVA's decision whether

that matter would be inextricably intertwined with the matters discussed above. See generally

Harris v. Derwinski, 1 Vet.App. 180, 183 (1990) (regarding claims found to be inextricably

intertwined).

In view of the foregoing, I would vacate the November 1995 Board decision and remand the

matter in order for the BVA to recharacterize and then readjudicate the appellant's claim for VA

educational assistance.