USCAVC No. 16-3438 Carr V McDonough On Remand from USCAFC: Issue Transferred Education Benefits

VA Law

USCAVC No. 16-3438 Carr V McDonough On Remand from US Court of Appeals for the Federal Circuit
(Decided February 19, 2021




Air Force veteran Robert Carr transferred a portion of his 48 months of education benefits to his daughter, Samantha Carr, so that she could pay for her college tuition. After she used these benefits to pay for two semesters, Ms. Carr began the fall 2013 semester with a single day of entitlement remaining. Invoking 38 C.F.R. § 21.9635(o), she sought to extend her benefits until the end of the semester, but the Board determined that subsection (y) of that regulation prohibited a transferee from receiving an extension—even though a veteran in the same situation would be entitled to one.

Ms. Carr brought this appeal to challenge the validity of § 21.9635(y), arguing that it is inconsistent with its authorizing statute, 38 U.S.C. § 3319. We didn’t reach that question in our initial decision because we concluded that 38 U.S.C. § 3695 prevented anyone—veteran or dependent—from receiving benefits in excess of 48 months. The Federal Circuit reversed our decision, however, interpreting the phrase “may receive” as referring not to the amount of benefits a person may receive, but as a baseline limit on entitlement to benefits when combined under more than one chapter. See Carr v. Wilkie, 961 F.3d 1168, 1176 (Fed. Cir. 2020), rev’g 31 Vet.App. 128 (2019). Under such reading, a person may receive benefits exceeding 48 months, notwithstanding section 3695’s express prohibition.

With this clarified, the regulatory question is now squarely before us. Finding that the regulation is not consistent with section 3319, the Court sets aside § 21.9635(y) and remands the case for VA to determine the amount of benefits to which Ms. Carr is entitled.


Accordingly, § 21.9635(y) is invalid to the extent that it bars a dependent who exhausts entitlement to chapter 33 educational assistance benefits during a semester from getting an extension on those benefits until the semester’s end.

Accordingly, 38 C.F.R. § 21.9635(y) is SET ASIDE, and the July 14, 2016 , Board decision is VACATED and the matter is REMANDED for VA to determine the amount of benefits owed to Ms. Carr for the fall 2013 semester.



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