           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, Deputy Assistant 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 Jackie C. 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
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.


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        After receiving 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 order shall 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 (5th Cir. 1995), cert. denied
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-of-
court 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


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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


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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

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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


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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


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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.




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