Citation Nr: 0814642 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 06-29 551 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an extension of the veteran's basic 10-year period of eligibility for receiving educational assistance benefits under the provisions of Chapter 30, Title 38, United States Code, (Montgomery GI Bill), beyond the adjusted delimiting date of December 31, 2005, to include the propriety of the establishment of this computed date. ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The veteran served on active duty from November 15, 1975, to August 21, 1977, and from May 23, 1981, to September 30, 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. FINDINGS OF FACT 1. The veteran's DD Form 214, Certificate Of Release Or Discharge From Active Duty, reflect that he served on active duty from November 15, 1975, to August 21, 1977, and from May 23, 1981, to September 30, 1999. 2. Ten years from the date of the veteran's discharge from his last period of active service would have been October 1, 2009, if he was continuously on active duty between January 1, 1977, and June 30, 1985. 3. The veteran's delimiting date is reduced by the 1370 days he was not on active duty between January 1, 1977, and June 30, 1985. 4. The adjusted delimiting date is December 31, 2005. 5. The veteran was not prevented from initiating or completing the chosen program of education within the otherwise applicable eligibility period because of a physical or mental disability that did not result from the veteran's willful misconduct. CONCLUSION OF LAW The veteran's delimiting date for Chapter 30, Title 38, United States Code, educational assistance benefits was properly adjusted to December 31, 2005. 38 U.S.C.A. §§ 3031, 3033 (West 2002 & Supp. 2007); 38 C.F.R. §§ 21.7050, 21.7051, 21.7142 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board notes that the agency of original jurisdiction (AOJ, i.e., RO) has a duty to notify and assist the veteran under 38 U.S.C.A. § 5103 (West 2002 & Supp. 2007) and 38 C.F.R. § 3.159 (2007). It does not appear, however, that these duties are applicable to claims such as the one at issue. Cf. Barger v. Principi, 16 Vet. App. 132 (2002). In Barger, the United States Court of Appeals for Veterans Claims (Court) held that these expanded duties are not applicable to cases involving the waiver of recovery of overpayment claims, pointing out that the statute at issue in such cases was not found in Title 38, United States Code, Chapter 51. Similarly, the statutes at issue in this appeal are not found in Chapter 51 (but rather, in Chapter 30). Note also that these notice and duty to assist provisions do not apply where, as here, the issue presented is one of statutory interpretation and/or the claim is barred as a matter of law. See 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). See, too, VAOPGCPREC 5-2004 (June 23, 2004). The veteran's DD Form 214, Certificate Of Release Or Discharge From Active Duty, reflect that he served on active duty from November 15, 1975, to August 21, 1977, and from May 23, 1981, to September 30, 1999. Although he has argued he was a medical student at Uniformed Services University of the Health Sciences during the period from August 22, 1977, until May 22, 1981, and he has requested the Army Board of Correction of Military Records to review why his claimed active duty time during 1977-1981 is not reflected on his DD Form 214, corrected dates of service from the service department have not been received. In adjudicating entitlement to VA benefits, the VA is bound by the certification from the service department regarding the nature of the veteran's service. 38 C.F.R. § 3.203; Duro v. Derwinski, 2 Vet. App. 530 (1992). The veteran contends that he is entitled to Chapter 30 benefits until October 1, 2009, because he was told by VA in 1999, when he retired, that he had until 2009 to use his Montgomery GI Bill education benefits and, based on that information, he enrolled in school in August 2005. He further argues that he had no reason, in 1999 (or up until the receipt of notification of the adjusted date), to think that VA had provided incorrect information. Had he known in 1999 that his delimiting date was in 2005, the veteran claims that he would have planned accordingly. In general, an individual may be entitled to educational assistance under Chapter 30 if he first entered on active duty as a member of the Armed Forces after June 30, 1985, or was eligible for educational assistance allowance under Chapter 34 as of December 31, 1989. 38 U.S.C.A. § 3011(a)(1); 38 C.F.R. § 21.7040. In this case, the evidence of record indicates that the veteran first entered active duty in August 1977, therefore, he did not qualify for Chapter 30 educational benefits under 38 U.S.C.A. § 3011(a)(1)(A). Pursuant to 38 U.S.C.A. § 3011(a)(1)(B), veterans with remaining Chapter 34 eligibility may, under certain conditions, qualify for continued educational assistance under Chapter 30. Assuming, the veteran was eligible for Chapter 34 entitlement, certain other criteria must be met. To convert Chapter 34 benefits to Chapter 30 benefits, a veteran must have served on active duty at any time during the period between October 19, 1984, and July 1, 1985, and have continued on active duty without a break in service for three years after June 30, 1985, or have been discharged after June 30, 1985, for a service-connected disability, a preexisting medical condition not characterized as a disability, hardship, convenience of the Government after serving 30 months of a three-year enlistment, involuntarily for convenience of the Government as a result of a reduction in force, or for a physical or mental condition not characterized as a disability and not the result of his own willful misconduct. 38 U.S.C.A. § 3011(a)(1)(B); 38 C.F.R. § 21.7044(a). In this case, the veteran served on active duty during the period between October 19, 1984, and July 1, 1985, and continued on active duty without a break in service for three years after June 30, 1985. Thus, assuming initial Chapter 34 eligibility, the veteran was then eligible for Chapter 30 benefits when his Chapter 34 benefits expired pursuant to 38 U.S.C.A. § 3011(a)(1)(B(i)); 38 C.F.R. § 21.7044(a). The veteran was separated from active duty on September 30, 1999. The law provides a ten-year period of eligibility during which an individual may use his or her entitlement to educational assistance benefits; that period begins on the date of the veteran's last discharge from active duty. 38 U.S.C.A. § 3031(a); see also 38 U.S.C.A. § 3033; 38 C.F.R. § 21.7142. For individuals whose eligibility is based on 38 U.S.C.A. § 3011(a)(1)(B)(i), however, the ten-year period of eligibility is reduced by the amount of time equal to the time that the veteran was not serving on active duty during the period beginning January 1, 1977, and ending June 30, 1985. 38 U.S.C.A. § 3031(e); 38 C.F.R. § 21.7050(b). Pursuant to 38 U.S.C.A. § 3031(a)(e); 38 C.F.R. § 21.7050(b), VA must reduce the 10 year period of eligibility for Chapter 30 benefits under 38 U.S.C.A. § 3011(a)(1)(B)(i) by an amount of time equal to the amount of time he or she was not on active duty during the period extending from January 1, 1977, to June 30, 1985. In this case, the veteran was not on active duty between August 22, 1977, and May 22, 1981, which equates to a total of 1370 days. Ten years after his last discharge from active duty would have been October 1, 2009. That date less 1370 days equals the date of December 31, 2005. Therefore, the veteran's proper delimiting date is December 31, 2005. VA law and regulations provide that an extended period of eligibility may be granted when it is determined that the veteran was prevented from initiating or completing the chosen program of education within the otherwise applicable eligibility period because of a physical or mental disability that did not result from the veteran's willful misconduct. It must be clearly established by medical evidence that such a program of education was medically infeasible. 38 C.F.R. § 21.7051(a) (2). That is not the case here. The evidence does not support nor does the veteran contend that he was prevented from initiating or completing the chosen program of education within the otherwise applicable eligibility period because of a physical or mental disability that did not result from the veteran's willful misconduct. The Board acknowledges the veteran's contention that he was initially misinformed regarding his eligibility. However, the legal criteria governing the payment of education benefits are clear and specific, and the Board is, regrettably, bound by them. Notwithstanding VA's obligation to correctly inform the veteran about basic eligibility or ineligibility for Chapter 30 educational assistance benefits, the remedy for breach of such obligation could not involve payment of benefits where statutory requirements for such benefits are not met. Harvey v. Brown, 6 Vet. App. 416, 424 (1994). As the disposition of this claim is based on the law, and not on the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER An extension of the veteran's basic 10-year period of eligibility for receiving educational assistance benefits under the Montgomery GI Bill, beyond the adjusted delimiting date of December 31, 2005, is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs