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Wisconsin

September 14, 2004
In the Appeal of George R. Theiss
HSLDA successful in getting veteran's benefits reinstated…

Filed: Fall 1999, Board of Veterans' Appeals

Nature of Case: After a six-year fight, HSLDA has seen success in gaining a reinstatement of benefits from the Veterans' Administration, which denied that homeschooling classified as an "educational institution" for the purpose of obtaining veterans' benefits.
HSLDA represented Wisconsin homeschool dad George Theiss on his claim for veterans' benefits for a homeschooled child over the age of 18 years. The federal regulations at the time of the appeal provided for continued benefits as long as the child was a member of the veteran's household and pursuing a course of instruction at an approved educational institution. HSLDA argued that Wisconsin had approved Mr. Theiss' homeschool program for many years, including the present one, and that the child should be regarded as attending an approved educational institution. To do otherwise would offend the constitutional guarantee of equal protection. A Veterans' Appeal General Counsel opinion of May 1998, concluded that a homeschool program is not an "educational institution," so a person enrolled in one is not a "child" for veteran's benefits purposes. The Veterans' Appeals Board agreed.

Not only did the Board rely upon the Veterans' Appeal General Counsel opinion, but it also pointed to the fact that the regulations have been amended to incorporate the opinion. Now the regulations specifically state as follows: "For the purposes of this section and section 3.667, the term 'educational institution' means a permanent organization that offers courses of instruction to a group of students who meet its enrollment criteria. The term includes schools, colleges, academies, seminaries, technical institutes, and universities, but does not include homeschool programs."

The Board of Veterans' Appeals affirmed the local decision, and HSLDA filed an appeal on May 25, 2001, to the United States Court of Veterans Appeals. HSLDA submitted its opening brief on January 24, 2002 and a reply brief on August 9, 2002. Oral arguments were held before the court on September 8, 2003.

On July 27, 2004, the United States Court of Appeals for Veterans' Claims ruled in favor of Mr. Theiss, stating that the VA regulation had not been properly promulgated. The Veterans Administration petitioned the court for review of the decision and/or en banc review but was denied.

Status: The case was remanded to the Board of Veterans' Affairs, which ruled on February 22, 2006 that Mr. Theiss's benefits were reinstated in full.

Last Updated: March 6, 2006

 Other Resources

Victory – Department of Justice Drops Appeal

Court of Appeals Backs HSLDA

Appellant's Opening Brief

Appellant's Reply Brief

Decision of Court of Appeals

Final Decision of Court of Appeals