Citation Nr: 0813765 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 06-06 829 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to educational assistance benefits under Title 38 United States Code Chapter 30 (Montgomery GI Bill). REPRESENTATION Veteran represented by: Missouri Veterans Commission INTRODUCTION The veteran served on active duty in the United States Air Force from May 1998 to April 2000. In May 2005, the veteran submitted an application for VA education benefits under Title 38, U.S.C. Chapter 30 (the Montgomery GI Bill). This appeal arose from a September 2005 decision of the Department of Veterans Affairs (VA) Regional Office in St, Louis, Missouri (the RO) denying such benefits. In her January 2006 substantive appeal, the veteran declined to provide testimony at a personal hearing. FINDING OF FACT The veteran served on active duty in the United States Air Force from May 1998 to April 2000, a period of 1 year, 10 months and 13 days. CONCLUSION OF LAW The requirements for basic eligibility for VA educational assistance under Chapter 30, Title 38, United States Code have not been met. 38 U.S.C.A. § 3011 (West 2002); 38 C.F.R. § 21.7042 (2007); Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran is seeking entitlement to educational benefits under 38 U.S.C. Chapter 30 (the Montgomery GI Bill). The Veterans Claims Assistance Act of 2000 The Board has considered VA's duty to inform the veteran of the evidence needed to substantiate her claim and to assist her in obtaining relevant evidence. See generally the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) [codified at 38 U.S.C.A. §§ 5103, 5103A (West 2002)]; 38 C.F.R. § 3.159 (2007). For two reasons, set out immediately below, the Board concludes that the VCAA is inapplicable in this case. See Holliday v. Principi, 14 Vet. App. 280 (2000) [the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim]. First, the United States Court of Appeals for Veterans Claims (the 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]. Specific VCAA notice was not required in this case because the applicable regulatory notification procedure was 38 C.F.R. § 21.1031 (2006) for claims under Chapter 30, not the VCAA. Under 38 C.F.R. § 21.1031(b) "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)." To that end, the RO advised the veteran in a letter dated September 6, 2005 that if information of record concerning her dates of service were not correct, she should inform VA. Second, the Court has held that, where the facts averred by the claimant could never satisfy the requirements necessary to substantiate the claim, any deficiency in a VCAA notice was nonprejudicial. See Valiao v. Principi, 17 Vet. App.229, 232 (2003); Manning v. Principi, 16 Vet. App. 534, 542-3, and cases cited therein. [the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter]. See also VAOPGCPREC 5-2004 (June 23, 2004) [VA is not required to meet the VCAA duties to notify or assist a claimant where a claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit]. Because interpretation of a statute is dispositive of the issue addressed in this decision, the Board finds additional efforts to notify or assist the veteran is not required. The Board adds that the veteran has been accorded appropriate due process. She has presented argument on her behalf. As was noted in the Introduction, she was offered the opportunity to present testimony at a personal hearing and elected not to do so. Relevant law and regulations The veteran has applied for basic educational assistance benefits under the provisions of Chapter 30, which provide, inter alia, an educational assistance program to assist in the readjustment of members of the Armed Forces to civilian life after their separation from military service. See 38 U.S.C.A. § 3001 (West 2002). The program is available to individuals who meet certain criteria of basic eligibility, including active duty during certain prescribed dates. See 38 U.S.C.A. § 3011; 38 C.F.R. §§ 21.7040, 21.7042 (2004). Relevant to this claim, an individual may establish eligibility for basic educational assistance based on service on active duty under the following terms, conditions and requirements as listed in 38 C.F.R. § 21.7042(a): An individual who after June 30, 1985 first enters on active duty as a member of the Armed Forces must either (i) serve at least three years of continuous active duty in the Armed Forces, or (ii) in the case of an individual whose initial period of active duty is less than three years, serve at least two years of continuous active duty in the Armed Forces. See 38 C.F.R. § 21.7042(a)(2). An individual who after June 30, 1985 first enters on active duty who has a service obligation of three years or more and who was discharged for the convenience of the government must complete 30 months of service. See 38 C.F.R. § 21.7042(a)(5). Analysis The facts in this case are undisputed. The veteran served a total of 1 year, 10 months and 13 days out of a three year enlistment. She was honorably discharged at the convenience of the government due to her pregnancy. The RO denied the veteran's claim due to lack of qualifying service, noting that since the veteran was discharged for the convenience of the government she was required to served at least 30 months of active duty to qualify for VA educational benefits under 38 C.F.R. § 21.7042(a)(5). The veteran argues that she received misinformation from military and VA personnel, specifically her commanding officer and a Veterans Benefits Counselor. This contention fails as a matter of law. See McTighe v. Brown, 7 Vet. App. 29, 30 (1994); see also Office of Personnel Management v. Richmond, 496 U.S. 414 (1990) [payment of government benefits must be authorized by statute; therefore, erroneous advice given by a government employee cannot be used to estop the government from denying benefits]. In essence, the veteran appears to be raising an argument couched in equity in that she contends that she faithfully served her country, she paid money into the program, she was honorably discharged and she should therefore be eligible for VA educational benefits. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104 (West 2002); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). As explained above, the Board has decided this case based on the law and regulations. The Board further observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." See Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) [citing Office of Personnel Management, supra, 496 U.S. at 426]. The Board further observes that the regulation provides for a number of other bases of entitlement to benefits under Chapter 30, such as additional Reserve service or service- connected disability. The veteran has not suggested that any such reason applies to her, and the record on appeal does not so suggest. Although the Board is sympathetic to the veteran's concerns, this case is one in which the law is dispositive of the issue. See Sabonis v. Brown, 6 Vet. App. 426 (1994). The benefits sought on appeal are therefore denied. ORDER Entitlement to educational assistance benefits under Title 38 United States Code Chapter 30 (Montgomery GI Bill) is denied. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs