Citation Nr: 1114303 Decision Date: 04/12/11 Archive Date: 04/21/11 DOCKET NO. 10-25 774 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to additional VA educational assistance benefits under 38 U.S.C.A. Chapter 33 Post-9/11 GI Bill. WITNESSES AT HEARING ON APPEAL Appellant and her father. ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty with the United States Air Force from January 1976 to January 1980 and from January 1991 to the present. The appellant is his daughter. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In March 2011, the appellant and the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran was notified by a September 2009 letter from VA that he was eligible for 36 months of educational assistance under 38 U.S.C.A. Chapter 33 Post-9/11 GI Bill. The Veteran was also notified that he could not receive more than 48 months of educational benefits under two or more programs. 2. Based on the contents of the September 2009 letter and an October 2009 conversation with a VA employee, the Veteran applied to transfer his educational benefits to the appellant. 3. In January 2010, the appellant was notified that she had been awarded educational benefits at a 100 percent level. 4. VA determined that the Veteran had previously used 40 months and 10 days of educational benefits under 38 U.S.C.A. Chapter 34 Vietnam Era GI Bill. The appellant was notified in April 2010 that she was only eligible for 7 months and 20 days of educational benefits. 5. Based on the Veteran's prior use of 40 months and 10 days of educational benefits under the Chapter 34 Vietnam Era GI Bill, the appellant is not eligible for educational benefits in excess of 7 months and 20 days. CONCLUSION OF LAW The requirements for payment of additional educational assistance benefits under 38 U.S.C.A. Chapter 33 Post-9/11 GI Bill have not been met. 38 C.F.R. §§ 38 C.F.R. §§ 21.402(a), 21.9500-21.9770 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant contends that she is entitled to additional educational assistance as she was initially awarded higher benefits based on an error committed by VA. In March 2011, she and the Veteran testified that they had relied on VA's initial award of benefits to their detriment. The facts in this case are not in dispute. In September 2009, the Veteran was issued a Certificate of Eligibility from VA stating that he was eligible for 36 months of full time educational benefits under 38 U.S.C.A. Chapter 33 Post-9/11 GI Bill. The letter also noted that the Veteran had relinquished his eligibility for benefits under 38 U.S.C.A. Chapter 30 Montgomery GI Bill in favor of the Post-9/11 GI Bill, and could not receive educational benefits totaling more than 48 months. Following receipt of the September 2009 letter from VA, the Veteran contacted the Muskogee RO by telephone. He spoke to a VA employee and asked her to confirm that he was eligible for 36 months of educational benefits. The Veteran was told that while he had already used some of his education benefits under 38 U.S.C.A. Chapter 34 Vietnam Era GI Bill, the Post-9/11 GI Bill was a separate entity and allowed for 36 months of education assistance. Based on the September 2009 letter and his October 2009 conversation with VA, the Veteran applied to transfer his education benefits to the appellant through both VA and the Air Force. To qualify for the full 36 months of educational assistance, he signed a two year active duty service extension with the Air Force and the appellant registered for classes at the St. Louis Community College. In January 2010, the appellant received a letter from VA stating that she had been granted education benefits under the Post-9/11 GI Bill at a 100 percent level. The exact number of months of benefits was not specified. Four months later, in April 2010, she received another letter from VA notifying her that further review of the Veteran's education record showed that he had previously used 40 months and 10 days of entitlement under Chapter 34. A service member may only receive a maximum of 48 months under two or more education programs, therefore the appellant was only eligible for 7 months, 20 days of assistance under the Chapter 33 Post-9/11 GI Bill. As of July 19, 2010, she would have 2 months and 21 days of entitlement remaining. The Post-9/11 GI Bill was enacted by Congress in June 2008. See Pub. L. No. 110-252, Title V, §§ 5001-5003, 122 Stat. 2357 (2008). The statutory provisions are codified at Title 38 U.S.C.A Chapter 33. VA promulgated new regulations to implement the change in law in March 2009 and the regulations are currently codified at 38 C.F.R. §§ 21.9500-21.9770 (2010). Under these provisions, an eligible individual is entitled to a maximum of 36 months of educational assistance under Chapter 33 and can transfer up to the full 36 months of his or her entitlement to a dependent. 38 C.F.R. §§ 21.9550, 21.9570. A transferor may not transfer an amount of entitlement that is greater than the entitlement he or she has available at the time of transfer. 38 C.F.R. § 21.9570. The Board notes that the Veteran's previous 40 months and 10 days of educational benefits were used in accordance with the Chapter 34 Vietnam Era GI Bill. The entire Chapter 34 program expired on December 31, 1989. 38 U.S.C.A. § 3462(e). While an individual may be entitled to benefits under various education programs, a person may not receive more than 48 months of educational assistance under two or more educational programs. 38 U.S.C.A. § 3695; 38 C.F.R. § 21.4020(a). Thus, even though VA initially informed the Veteran in September 2009 that he was entitled to a full 36 months of educational benefits under Chapter 33, the Veteran was in fact only eligible for 7 months, 20 days of assistance and could not transfer more than this amount to the appellant. See 38 C.F.R. § 21.9570. The Board regrets that the Veteran was misinformed by VA, but is bound by the applicable law and regulations when determining a claim for VA benefits. Unfortunately, there is no provision for benefits based on the appellant's arguments of equity, fairness, or that she and the Veteran relied on the information originally supplied by VA to their detriment. The law is clear in this case, and the claim for additional educational assistance must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). In denying this claim, the Board acknowledges the unfortunate circumstances of the appellant's case. The Board notes that the appellant's arguments essentially constitute a theory of entitlement to equitable relief. Although the Board denies her claim as a matter of law as lacking legal merit, the Board is sympathetic to her claim. The Board, however, is without authority to grant it on an equitable basis and instead is constrained to follow the specific provisions of the law. See 38 U.S.C.A. § 7104 (West 2002); Taylor v. West, 11 Vet. App. 436, 440-441 (1998); Harvey v. Brown, 6 Vet. App. 416,425 (1994). The Secretary of VA, however, has discretionary equitable power to provide relief, and the appellant is free to apply to the Secretary of VA and request that he exercise his discretionary authority to grant her claim on an equitable basis. See 38 U.S.C.A. § 503 (West 2002); see also Darrow v. Derwinski, 2 Vet. App. 303, 304-306 (1992). If the appellant decides to seek such equitable consideration by the Secretary, she may want to consider contacting a Veterans Service Organization for assistance. 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) (2010). Although the appellant has not received notification of VA's duties to notify and assist, 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). In the present case, specific VCAA notice was not required because the applicable regulatory notification procedure was contained in 38 C.F.R. § 21.1031 (2010) for claims, not the VCAA. See 38 C.F.R. § 21.9510 (specifically applying the provisions of subpart B and 38 C.F.R. § 21.1031 to claims for educational assistance under Chapter 33). In addition, because the application of the law to the undisputed facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is necessary. See Mason v. Principi, 16 Vet. App. 129 (2002). ORDER Entitlement to additional VA educational assistance benefits under 38 U.S.C.A. Chapter 33 Post-9/11 GI Bill is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs