UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 18-4601

JAMES R. WELCOME, APPELLANT,

V.

ROBERT L. WILKIE,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued July 14, 2020 Decided October 29, 2020)

Jennifer A. Zajac, of Oceanside, California, with whom Linda E. Blauhut, of Washington, 

D.C., was on the brief, for the appellant.

Mark D. Gore, with whom Richard J. Hipolit, Acting General Counsel; Mary Ann Flynn,

Chief Counsel; and Edward V. Cassidy, Jr., Deputy Chief Counsel, were on the brief, all of 

Washington, D.C., for the appellee.

Before PIETSCH, GREENBERG, and TOTH, Judges.

TOTH, Judge: The Veterans Retraining Assistance Program (VRAP) was a "short-lived 

program intended to provide older veterans with job retraining for various high-demand 

occupations." Lacey v. Wilkie, 32 Vet.App. 71, 73 (2019). By statute, Congress terminated VA's 

authority to issue payments under the program as of March 31, 2014. As that date approached, VA 

decided to issue accelerated, lump-sum benefit payments to veterans who had remaining eligibility 

and who were still enrolled on a full-time basis—but only in an amount that would carry veterans

to the end of their current term or June 30, 2014, whichever came earlier. 

James R. Welcome was one of these veterans. Despite having more than 10 months of 

remaining eligibility as of March 31, 2014, VA calculated his lump-sum benefit payment until the 

end of his term—May 30, 2014. He thus received only 2 of his remaining 10 months of benefits. 

The question in this case is whether VA's decision to limit Mr. Welcome's benefits to the 

end of his term constituted a reasonable interpretation of the statute. We agree with Mr. Welcome 

that there was no statutory basis for such action; to the contrary, VRAP assistance was expressly 

tied to the veteran's program of education, and his payment should have corresponded to the full 

extent of his eligibility. The matter is remanded for the Board to reconsider the veteran's 
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entitlement to additional benefits based on the nature and extent of his educational program, his 

enrollment status in that program after March 31, 2014, and any other statutorily relevant factors.

I. BACKGROUND

VRAP provided "training to veterans aged 35 to 60, who were unemployed but not 

otherwise eligible for TDIU or VA education benefits, and who were not enrolled in other state or 

federal job training programs at the time of application." Lacey, 32 Vet.App at 73. Participants 

were "entitled to up to 12 months of retraining assistance," which could "only be used . . . to pursue 

a program of education (as such term is defined in section 3452(b) of title 38, United States Code) 

for training, on a full-time basis." VOW to Hire Heroes Act of 2011, Pub. L. No. 112–56, § 211(b), 

125 Stat. 711, 713.

In August 2013, Mr. Welcome applied for this assistance so that he could pursue a marine 

service technology program and receive a certificate in Boatmotor Maintenance and Service. R. at 

1614. VA certified his eligibility and told him that he was entitled to 12 months of benefits. R. at 

1632. Because the course was full at the time, however, Mr. Welcome had to wait until February 

10, 2014, to begin the program. 

With its payment authority set to expire on March 31, 2014, VA decided to issue

accelerated, lump-sum payments to cover benefits for veterans who remained enrolled in 

educational programs past that date.

1 Mr. Welcome received one of these payments. Additionally, 

he received a notice from VA informing him that his accelerated benefits were calculated to cover 

a limited period that terminated at the earliest of four alternate dates:

▪ The end date of the term, quarter, or semester in which he was enrolled as of 

March 31, 2014;

▪ The date his enrollment dropped below full time; 

 

1 As the Secretary explained during oral argument, VA interpreted the payment restriction narrowly, 

concluding that it could continue to provide benefits for program periods beyond March 31, 2014, so long as payments 

were made prior to that date. See Oral Argument, https://www.youtube.com/watch?v=U9l8VkQez60&t=2522s, at 

40:15-41:23. Mr. Welcome doesn't contest this reading, and we see no need to question it.

We also note that the Agency's decision was widely circulated. See Email Bulletin from Curtis L. Coy, 

Deputy Under Sec'y for Econ. Opportunity, Veterans Benefits Admin., U.S. Dep't of Veterans Affairs, to Colleagues 

and Fellow Veterans (Mar. 14, 2014, 08:36 EDT) (on file at https://content.govdelivery.com/accounts/USVAVBA/-

bulletins/aaeb4c); Letter from Curtis L. Coy, Deputy Under Sec'y for Econ. Opportunity, Veterans Benefits Admin., 

U.S. Dep't of Veterans Affairs, to School Certifying Officials (Mar. 5, 2014) (on file at http://www.benefits.va.gov/-

gibill/docs/letters/vrap_letter_to_schools.pdf). 
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▪ June 30, 2014; or

▪ The date on which he exhausted his 12 months of entitlement under VRAP.

R. at 1640. 

Ultimately, VA paid Mr. Welcome benefits to the end of his term, which was May 30, 

2014. He consequently received benefits for only 2 months of his remaining 10 months and 9 days 

of eligibility. 

Mr. Welcome challenged that decision before the Board, arguing that he was entitled to the 

full 12 months of benefits. If he could be paid in advance for 2 months, he asked, why could he 

not be paid for the entire 10 months and 9 days of his remaining eligibility?

In a succinct August 2018 decision, the Board never acknowledged that VA issued 

Mr. Welcome a lump sum payment for his enrollment period after March 2014, but merely noted 

that the law did not provide for any extension of VRAP benefits as there was simply "no legal 

basis to find him eligible for VRAP payments beyond March 31, 2014." R. at 5. In so ruling, the 

Board neither discussed nor provided any rationale for how VA arrived at the four "earliest of"

alternatives upon which it based its payment obligations to Mr. Welcome. 

Mr. Welcome appealed to this Court. 

II. ANALYSIS

We analyze whether VA's decision to limit Mr. Welcome's benefits to the end of the term 

constituted a reasonable interpretation of VRAP's statute—or, whether the statute required VA to 

award a sum that corresponded to the full extent of his eligibility. We evaluate challenges to an 

agency's interpretation of a statute that it administers via the two-step framework outlined in 

Chevron, U.S.A., Inc., v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). At step 

one, we ask whether Congress has directly spoken to the precise question at issue. If the intent of 

Congress is clear, that is the end of the matter as the Court "must give effect to the unambiguously 

expressed intent of Congress." Id. at 842–43. If the statutory language is "silent or ambiguous," 

however, we proceed to step two and ask whether the agency's action is based on a "permissible 

construction of the statute." Id. at 843. If the agency's interpretation is based on a permissible 

construction, then the Court defers to it; if it is not, then the action is "arbitrary, capricious, or 

manifestly contrary to the statute" and thus unlawful. Id. at 844; Balestra v. United States, 803 F.3d 

1363, 1368 (Fed. Cir. 2015). 
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We review de novo questions of statutory interpretation. Philbrook v. Wilkie, 32 Vet.App. 

342, 346 (2020). Our "'proper starting point lies in a careful examination of the ordinary meaning 

and structure of the law itself. Where, as here, that examination yields a clear answer, judges must 

stop.'" Genentech, Inc. v. Immunex R.I. Corp., 964 F.3d 1109, 1111 (Fed. Cir. 2020) (quoting Food 

Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2364 (2019)).

A. Step One – Congress Was Clear

The text of the statute makes clear that VA was required to pay eligible veterans the full 

extent of their benefits. We noted in Lacey that Congress designed VRAP to be "limited in duration 

and scope." 32 Vet.App. at 74. Commencing on July 1, 2012, VRAP contained a sunset provision 

limiting the Secretary's authority to make payments on March 31, 2014. § 211(a), (k), 125 Stat. at 

713–15. Specifically, subsection (k) of section 211 read: "TERMINATION OF AUTHORITY—

The authority to make payments under this section shall terminate on March 31, 2014." Id. at 715.

But while the statute ended the Secretary's ability to make payments, it did not contain any 

language requiring veterans to use their benefits by a certain date. Instead, the statutory text reveals 

other "discrete, if implied, limitations." Lacey, 32 Vet.App. at 79. We know, for example, that 

benefits could only issue to veterans pursuing a program on a "full-time basis." § 211(b), 125 Stat. 

at 713. We also know that VA could only provide "up to 12 months of retraining assistance." Id.

Thus, there is a clear statutory basis for VA limiting a lump sum payment to a veteran who had 

dropped below full-time status or whose program of education was completed in fewer than 12 

months. 

The statute, however, contains no language directing VA to curtail or otherwise reduce a 

veteran's benefits, and nothing in the text or structure suggests that Congress intended to cut 

benefits at the end of a veteran's term or June 30, 2014, whichever came earlier. The law does not 

tie the veteran's benefits to a current term of enrollment or to any specific date. On the contrary, it

expressly tethers benefits to the program of education, such that participants are "entitled to up to 

12 months of retraining assistance" "to pursue a program of education . . . for training, on a fulltime basis in a program approved under Chapter 36, offered by a community college or technical 

school, leading to an associate degree or a certificate in a high demand occupation." Id. On its own 

terms, the statute contains only these limitations to the 12-month term of benefits.

Congress's use of mandatory language is significant, noting that "each veteran who 

participates in the program . . . shall be entitled to up to 12 months of retraining assistance provided 
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by the Secretary of Veteran's Affairs." Id. (emphasis added). In fact, were it not for the inclusion 

of the phrase "up to 12 months," there could be no ambiguity as to the length of benefits to which 

a participant was entitled. But even with the inclusion of the "up to" phrase, there is nothing in the 

statutory language to suggest that the actual length of a veteran's entitlement is subject to a 

discretionary decision on the part of the Secretary. On the contrary, the statutory language strongly 

indicates that the "up to 12 months" phrase is designed to allow a measure of flexibility in the

period of entitlement to match the expansive variety of programs of education a veteran can 

undertake—many of which may be capable of completion in fewer than 12 months. Stated 

differently, the "up to 12 months" language establishes that a veteran who completes a program of 

education in fewer than 12 months does not retain eligibility to any remaining benefits.

The statutory language thus indicates that the period of entitlement would be determined,

not by the discretion of the Secretary, but by the duration and nature of the program of education 

a veteran pursued on a full-time basis. Section 3452(b) defines "program of education" broadly to 

cover a variety of program types. Lacey, 32 Vet.App. at 76. At its broadest, the definition reaches

"any curriculum or any combination of unit course or subjects . . . generally accepted as necessary

to fulfill requirements for the attainment of a predetermined and identified educational, 

professional, or vocational objective." 38 U.S.C. § 3452(b). And in a narrower sense, it can include

programs with more than one objective "reasonably related to a single career," coursework 

required "as a condition to obtaining financial assistance under . . . the Small Business Act," or

various tests for licenses, credentials, or admittance to higher education. Id.

Throughout this "expansive definition," Lacey, 32 Vet.App. at 79, a common denominator 

emerges among the authorized program types: the full "attainment of a[n] . . . objective," 

§ 3452(b). There is a sense of completeness; that a "program of education" is the sum of its parts, 

not an individual component or term. 

Definitions set out by statute are to be carefully followed. Burgess v. United States, 

553 U.S. 124, 129 (2008) ("Statutory definitions control the meaning of statutory words . . . in the 

usual case." (quotation marks omitted)). It carries significant weight that Congress expressly linked

VRAP benefits to the "program of education" chosen by the veteran, rather than smaller units such 

as individual classes, terms, semesters, or other components. Further, the few limiting factors in 

the statute were clearly articulated, such as the October 1, 2013, application deadline; the 12-month 

cap on benefits; and the requirement that the veteran maintain full-time enrollment in a program 
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approved under Chapter 36, leading to an associate degree or certificate in a high demand 

occupation. 

In whole, the statute lacks any indication that Congress intended to allow VA discretion to 

grant a smaller allotment of benefits based on limitations other than those expressly listed. Instead, 

we read it as signaling a clear intent from Congress requiring VA to pay eligible veterans the full 

extent of the benefits provided for under the statute. Thus, once the Secretary chose to administer 

lump-sum payments to help veterans toward their objectives, he had an obligation to provide 

benefits in a manner consistent with the statutory criteria, subject only to the express limitations 

in the statute.

B. Step Two – VA's Interpretation

Nonetheless, even if we were to regard VRAP as ambiguous as to whether Congress 

delegated to VA authority to limit benefits—for reasons other than those listed in the statute—to

a period less than the full 12-months of eligibility, VA's proposal of the four alternative "earliest 

of" dates does not constitute a permissible interpretation of the statute. For this reason, VA's 

position does not warrant deference.2

We find nothing in the statute to support the Secretary's main argument, namely that the

hard stop of June 30 was justified because Congress requested a report on VRAP's achievement of 

target objectives by July 1, 2014. See § 211(i)(1), 125 Stat. at 714–15. The Secretary contends that 

the report could only accurately reflect the number of veterans assisted through the program if 

there were no longer any veterans active in the program itself. It's true that, without the June 30 

cutoff, veterans might still have been in the program as of July 1; but there is no reason to prevent 

the Secretary from tallying numbers long before July 2014 where the last veteran applied for

assistance on October 1, 2013, and the last VRAP payment issued on March 31, 2014. By its own 

terms, the report served merely to indicate the total number of participants, degrees awarded, and 

"data related to the employment status" of the participants. § 211(i)(2)(B), 125 Stat. at 715. 

Although Congress wanted to know by July how many veterans participated, earned a degree, and 

gained employment, that request doesn't signal a congressional preference for data over veterans 

 

2 Because VA's interpretation was not reasonable in substance, we do not consider whether VA's publication 

of a bulletin to explain how it interpreted its obligations under § 211(k) satisfied what's become known as "Step 

Zero"—the threshold requirement that an agency interpretation be of the sort that warrants Chevron analysis in the 

first instance. See United States v. Mead Corp., 533 U.S. 218, 229 (2001). 
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with remaining entitlement. The reporting requirement thus proves a slim reed to support an 

inference that Congress wanted veterans who were still engaged in an educational program to quit 

or otherwise continue alone without assistance. 

Instead, the statute's eligibility criteria reflect that VRAP was designed to provide 

educational benefits for older, unemployed veterans, who were not entitled to receive any other 

educational assistance, and who were not enrolled in a federal or state job training program. 

§ 211(e)(1)(A-F), 125 Stat. at 713-14. To discontinue benefits for these veterans before the end of 

the education program designed to provide them with the training and credentials to obtain 

employment in high-demand occupations, simply to provide Congress with a report, runs counter 

to the objectives of what here is clearly a remedial statute. See Smith v. Brown, 35 F.3d 1516, 1525 

(Fed. Cir. 1996), superseded on other grounds by statute, 38 U.S.C. § 7111.

As a secondary basis, the Secretary also suggests that his decision to implement the endof-term option was informed by chapter 30, which administers the Montgomery G.I. Bill program. 

He considers that context analogous and thus instructive because a specific provision under that 

chapter, 38 U.S.C. § 3014A(c)(2), authorizes accelerated payments to a narrow subset of 

beneficiaries but limits those payments to the end of the veteran's current term. 

But section 3014A has less in common with the VRAP program than this argument

suggests. That statute addresses chapter 30 beneficiaries "enrolled in an approved program of 

education that leads to employment in a high technology occupation in a high technology industry" 

and who are charged tuition and fees at a rate more than double what VA's "basic educational 

assistance allowance" covers. 38 U.S.C. § 3014A(b). The unique context—high-priced, techspecific degrees—is enough to strain the analogy. But more than that, in permitting lump sum 

payments, section 3014A does not limit the amount of benefits that veterans were otherwise 

entitled to. The law merely requires VA to break up accelerated payments by term instead of 

issuing a single payment for the entire program. See, e.g., 38 U.S.C. § 3014A(e)(1) (referring to 

"each accelerated payment of basic educational assistance made to an individual under this 

section" and thus contemplating multiple accelerated payments). 

What the Secretary did here was different. He issued a lump sum payment that delivered 

only a fraction of the benefits for which Mr. Welcome was eligible, a decision divorced from any 

statutory authority. 
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Finally, the fact that the Board did not cite either of these purported justifications in its 

decision suggests that they serve as mere justifications for a litigation position rather than the 

reasoned interpretation of a statute by an agency for the purpose of carrying out the authority 

delegated to it. 

C. The Board Decision

Because the Secretary's interpretation of VRAP was unreasonable, we would find error in 

the Board decision even if it had adopted the position spelled out by the Secretary. Nonetheless, 

the Board's actual justification—that VA's decision to limit benefits to the four "earliest of dates"

was justified because veterans had no right to benefits after March 31, 2014—stands in direct 

conflict to the policy adopted by VA in making payments to cover benefits extending beyond that 

date. For this reason, it cannot be upheld. See Hudgens v. McDonald, 823 F.3d 630, 638 (Fed. Cir. 

2016). 

Additionally, because the Board decided (incorrectly) that the law categorically precluded

the benefits sought, it did not make factual findings concerning the nature of Mr. Welcome's course 

of study and his enrollment status after March 31, 2014. These questions bear directly on his 

continued eligibility for the periods for which he seeks payment and thus must be resolved by the 

Board on remand. We cannot make these factual findings in the first instance. See Webb v. Wilkie, 

32 Vet.App. 309, 315 (2020). 

III. CONCLUSION

Accordingly, the August 2, 2018, Board decision is VACATED and the matter is 

REMANDED for further proceedings consistent with this decision.