Citation Nr: 1120545 Decision Date: 05/26/11 Archive Date: 06/06/11 DOCKET NO. 09-01 124 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether the Veteran is eligible for educational assistance benefits under the Montgomery GI Bill-Selected Reserve (Chapter 1607), also known as the Reserve Educational Assistance Program (REAP). ATTORNEY FOR THE BOARD Biswajit Chatterjee, Associate Counsel INTRODUCTION The Veteran served on active duty in the military from January to September 2003. This appeal to the Board of Veterans' Appeals (Board) is from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta (Decatur), Georgia. Although the Veteran had requested a hearing at the RO before a Veterans Law Judge of the Board (Travel Board hearing), he failed to report for the hearing scheduled for February 11, 2011. He has not explained his absence or requested to reschedule the hearing. Therefore, his hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d) (2010). FINDING OF FACT The Department of Defense (DoD) has not established eligibility for this Veteran for Chapter 1607 benefits, i.e., participation in the REAP. CONCLUSION OF LAW The claim at issue has no legal merit. 10 U.S.C.A. §§ 16161-16166 (West 2002 & Supp. 2010); 38 C.F.R. §§ 21.7540, 21.7550 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Since the Veteran's claim is being denied as a matter of law, the duty-to-notify-and-assist provisions of the Veterans Claims Assistance Act of 2000 (VCAA) do not apply. See Manning v. Principi, 16 Vet. App. 534 (2002) (VCAA has no effect on appeal limited to interpretation of law); see also 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). The VCAA does not apply because the issue presented is solely of statutory and regulatory interpretation and/or the respective claim is barred as a matter of law in that it cannot be substantiated. 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 contends he is entitled to VA educational assistance benefits under the Montgomery GI Bill - REAP, to assist in paying the costs of obtaining an Associate's Degree in Computer Electronics Engineering Technology. See August 2008 Claim (VA Form 22-1990). Chapter 1607 of Title 10 of the United States Code establishes a benefits program known as the REAP. The purpose of REAP is to provide educational assistance to members of the reserve components called or ordered to active service in response to a war or national emergency declared by the President or the Congress, in recognition of the sacrifices that those members make in answering the call to duty. 10 U.S.C.A. § 16161. Each military department, under regulations prescribed by DoD and the Department of Homeland Security with respect to the Coast Guard (when it is not operating as a service in the Navy), determines who is eligible for these benefits. In turn, VA administers the program and pays benefits from funds contributed by DoD to each Veteran entitled to educational assistance. 10 U.S.C.A. §§ 16162, 16166. On or after September 11, 2001, a member of a reserve component is entitled to educational assistance if the member (1) served on active duty in support of a contingency operation for 90 consecutive days or more; or (2) in the case of a member of the Army National Guard of the United States or the Air National Guard of the United States, performed full time National Guard duty under section 502(f) of title 32 for 90 consecutive days or more when authorized by the President or Secretary of Defense for the purpose of responding to a national emergency declared by the President and supported by Federal funds. 10 U.S.C.A. § 16163(a). In this particular case at hand, VA made an inquiry to the DoD regarding the appellant's REAP eligibility using his Social Security identification number. DoD's response establishes that he is presently ineligible for these benefits. Notably, DoD found the Veteran to be eligible for REAP benefits beginning on April 13, 2003, but also terminated eligibility to REAP benefits effective on September 30, 2005. See August 2008 DoD response. As further clarification, the status code and accompanying footnotes provided by the DoD response indicate that the termination of his Chapter 1607 eligibility was based on transfer from the Selected Reserve. The Board notes that under 10 U.S.C.A. § 16164(a), a member remains entitled to educational assistance while serving (1) in the Selected Reserve of the Ready Reserve, in the case of a member called or ordered to active service while serving in the Selected Reserve; or (2) in the Ready Reserve, in the case of a member ordered to active duty while serving in the Ready Reserve (other than the Selected Reserve). 10 U.S.C.A. § 16164(a). In short, the DoD determined he is no longer eligible for REAP because he left the reserves. To the extent the Veteran disagrees, the Board emphasizes that VA simply has no authority to alter the eligibility determination made by DoD. The regulations clearly stipulate that determinations of eligibility for REAP benefits are within the sole purview of the United States Armed Forces. 38 C.F.R. §§ 21.7540, 21.7550. The Board is sympathetic to the Veteran's arguments but, unfortunately, is unable to provide a legal remedy. See Owings v. Brown, 8 Vet. App. 17, 23 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992) ("This Court must interpret the law as it exists, and cannot 'extend . . . benefits out of sympathy for a particular [claimant].'"). Since the Veteran's claim fails because of absence of legal merit or lack of entitlement under the law, the claim must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The appeal is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs