Citation Nr: 1034852	
Decision Date: 09/15/10    Archive Date: 09/21/10

DOCKET NO.  08-13 344	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, 
Oklahoma


THE ISSUE

Entitlement to VA educational assistance under Chapter 30, Title 
38, United States Code (Montgomery GI Bill).


ATTORNEY FOR THE BOARD

N. T. Werner, Counsel




INTRODUCTION

The Veteran served on active duty from December 2000 to November 
2008.

This matter comes before the Board of Veterans' Appeals (Board) 
on appeal from a January 2008 decision of the Department of 
Veterans Affairs (VA) Regional Office's (RO) Education Center in 
Muskogee, Oklahoma, which denied eligibility to education 
benefits under the Montgomery GI Bill (Chapter 30, Title 38 
United States Code).

In February 2010, the Board remanded the appeal for the agency of 
original jurisdiction to obtain and associate with the record the 
records relied on it in January 2008 when it denied the claim.  
While the appeal was in remand status, these records were 
obtained and associated with the claims file in full compliance 
with the Board's remand directions.  See Stegall v. West, 
11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) 
(holding that only substantial, and not strict compliance with 
the terms of a remand request, is required); Dyment v. West, 
13 Vet. App. 141, 146-47 (holding that there was no Stegall 
violation when the examiner made the ultimate determination 
required by the Board's remand, because such determination more 
than substantially complied with the Board's remand order).  
Moreover, because these records were in the claim's file at the 
time of the April 2008 statement of the case, they are not 
additional pertinent evidence and therefore the Board finds that 
the agency of original jurisdiction did not err by not thereafter 
issuing a supplemental statement of the case.  See 38 C.F.R. 
§ 19.31 (2009).  


FINDING OF FACT

The preponderance of the competent and credible evidence of 
record shows that the Veteran, in June 2000, signed a DD Form 
2366, Montgomery GI Bill Act, in which he declined education 
benefits under the Montgomery GI Bill.




CONCLUSION OF LAW

The Veteran is ineligible to receive educational assistance 
benefits under Chapter 30 as a matter of law.  38 U.S.C.A. 
§§ 3001, 3011 (West 2002); 38 C.F.R. §§ 21.1031, 21.1032, 
21.7040, 21.7042 (2009).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), VA has a duty to notify and assist claimants in 
substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009).  

In the present case, the Board acknowledges that no VCAA letter 
was sent to the Veteran.  However, the United States Court of 
Appeals for Veterans Claims (Court) has held that VCAA 
notification procedures do not apply in cases where the 
applicable chapter of Title 38, United States Code contains its 
own notice provisions.  See Barger v. Principi, 16 Vet. App. 132, 
138 (2002) (VCAA notice was not required in case involving a 
waiver request).  Therefore, in the present case the Veteran is 
not entitled to VCAA notice because the applicable regulatory 
notification procedure is found at 38 C.F.R. § 21.1031 (2009) for 
claims under Chapter 30, not the applicable chapter of Title 38.  

Moreover, the Board also finds even if the VCAA applied to claims 
for education benefits under the Montgomery GI Bill, it does not 
apply to the current appeal where the law, and not the underlying 
facts or development of the facts, is dispositive of the matter.  
See Manning v. Principi, 16 Vet. App. 534, 542-543 (2002); see 
also Smith v. Gober, 14 Vet. App. 227, 230 (2000), aff'd, 281 
F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002); 
Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOGCPREC 5-2004 
(June 23, 2004).  

As to the notice criteria which does apply to claims for 
education benefits under the Montgomery GI Bill, 38 C.F.R. § 
21.1031(b) provides in relevant part that "if a formal claim for 
educational assistance is incomplete, or if VA requires 
additional information or evidence to adjudicate the claim, VA 
will notify the claimant of the evidence and/or information 
necessary to complete or adjudicate the claim and the time limit 
provisions of § 21.1032(d)."  In this regard, the Board finds 
that the Veteran was provided sufficient 38 C.F.R. § 21.1031(b) 
notice by the January 2008 action and February 2008 notice letter 
as well as the April 2008 statement of the case.  The Board also 
finds that VA satisfied the 38 C.F.R. § 21.1032 development 
requirement by obtaining and associating with the record all of 
the Veteran's relevant service personnel records.  Therefore, the 
Board finds that that the Veteran has been accorded appropriate 
due process.  

The Claim

The Veteran claims that he should be entitled to education 
benefits under the Montgomery GI Bill because he does not 
remember turning down these benefits and he thought that he had 
been paying for them for the eight years he served on active 
duty.

In this regard, basic educational assistance benefits under the 
provisions of Chapter 30, provides, among other things, that an 
educational assistance program to assist in the readjustment of 
members of the Armed Forces to civilian life after their 
separation from military service.  38 U.S.C.A. § 3001.  The 
program is available to individuals who meet certain criteria of 
basic eligibility.  38 U.S.C.A. § 3011; 38 C.F.R. §§ 21.7040, 
21.7042.

The governing law specifies that an individual who, after June 
30, 1985, first becomes a member of the Armed Forces, may elect 
not to receive educational assistance under Chapter 30, Title 38, 
United States Code.  This election must be made at the time the 
individual initially enters active duty as a member of the Armed 
Forces.  An individual who makes such an election is not eligible 
for education assistance under Chapter 30, Title 38, United 
States Code.  38 U.S.C.A. § 3011(c)(1); 38 C.F.R. § 21.7042(f).

With the above criteria in mind, the Veteran's DD 214 shows that 
he served on active duty from December 2000 to November 2008.  
The Veteran's DD 214 also shows that he did not contribute to an 
educational assistance program while on active duty and the 
reason for his separation was the completion of his required 
active service.  

A review of the record on appeal also reveals a DD Form 2366, 
Montgomery GI Bill Act, signed by the Veteran and dated in June 
2000 in which he specifically declined education benefits under 
the Montgomery GI Bill.  The DD Form 2366 also contains the 
signature of a witness who saw the Veteran sign the document.  
The June 2000 DD Form 2366 also shows that the Veteran initialed, 
on three occasions, the part of the form which notified him that 
he was declining educational benefits under the Montgomery GI 
Bill. 

While the Veteran does not recall signing the June 2000 DD Form 
2366 in which he declined education benefits under the Montgomery 
GI Bill, he does not claim and the record does not show that the 
signature and initials on this form were not his or that the 
witness affirmation was somehow a mistake.  Moreover, while the 
law provides a limited number of situations in which such an 
election can be withdrawn, the Veteran does not claim and the 
facts of this appeal do not show that the appellant fits into any 
of these situations.  See 38 U.S.C.A. §§ 3018, 3018A, 3018B (West 
2002).  The Board has reached this conclusion because, among 
other things, the Veteran's active duty service dates were not 
between December 1988 and June 1989 (see 38 U.S.C.A. § 3018); he 
was not involuntarily separated from service (see 38 U.S.C.A. § 
3018A); and he did not separate from active duty before October 
1992 (see 38 U.S.C.A. § 3018(B)(a)(2)).  The Board also finds the 
exception found at 38 U.S.C.A. § 3018(B)(a)(1) is not applicable 
to the current appeal because, even though the Veteran filed his 
current claim for Montgomery GI Bill benefits prior to his 
November 2008 separation from active duty, the record does not 
show that he received voluntary separation incentives under 
section 1174a or 1175 of Title 10 and he followed the procedure 
found at 38 U.S.C.A. § 3018(B)(a)(1)(A) to (E) for withdrawing 
his election prior to his separation from active duty. 

Similarly, while the Veteran claimed that he thought he had been 
paying all along for his GI bill educational benefits while on 
active duty, he has not produced any objective proof of these 
payments.  In fact, the only objective evidence found in the 
record, which is found in his DD 214, shows that he did not 
contribute to an educational assistance program while on active 
duty.  

The law specifically states that, if an individual makes an 
election not to receive educational assistance under this chapter 
when initially entering on active duty, such individual shall not 
be entitled to educational assistance under Chapter 30, Title 38, 
United States Code.  38 U.S.C.A. § 3011(c)(1).  These laws and 
regulations are binding on the Board.  38 U.S.C.A. § 7104(a) 
(West 2002).  The Board must apply "the law as it exists, and 
cannot 'extend . . . benefits out of sympathy for a particular 
[claimant].'"  See Owings v. Brown, 8 Vet. App. 17, 23 (1995), 
quoting Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992).  As no 
exceptions to the controlling legal criteria have been provided 
in the Federal regulations, the Board has no authority to 
overturn or to disregard the very specific limitations provided 
for the award of Chapter 30 educational benefits.  38 U.S.C.A. § 
7104(a); see also, Harvey v. Brown, 6 Vet. App. 416 (1994).  

Under the circumstances of this case, the Board is without 
authority to grant the benefit sought on appeal as it is 
precluded by law because the preponderance of 


the competent and credible evidence of record shows that the 
Veteran elected not to receive such benefits and therefore must 
deny the claim.  38 U.S.C.A. § 3011(c)(1); 38 C.F.R. § 
21.7042(f); Sabonis v. Brown, 6 Vet. App. 426 (1994).


ORDER

The claim for basic eligibility for educational assistance 
benefits under Chapter 30 is denied as a matter of law.


____________________________________________
ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs