Citation Nr: 1122002 Decision Date: 06/07/11 Archive Date: 06/20/11 DOCKET NO. 10-26 420 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUE Whether an election for Post-9/11 GI Bill (Chapter 33) benefits is revocable and can be rescinded. ATTORNEY FOR THE BOARD Shabnam Keyvan INTRODUCTION The Veteran served on active duty from February 2003 to February 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 decision of the above-referenced RO. FINDINGS OF FACT 1. In June 2009, the RO received the Veteran's electronically filed application for educational benefits under the Post-9/11 GI Bill program (Chapter 33) in lieu of benefits under the Montgomery GI Bill (MGIB) program (Chapter 30). 2. In July 2009, the RO issued a letter to the Veteran notifying him that he was eligible to receive benefits for an approved program of education or training under the Post-9/11 GI Bill beginning August 1, 2009. 3. In November 2009, the RO received from the Veteran an electronically filed VA Form 22-1990 seeking educational benefits for the same training program, but solely under the MGIB program. 4. In the December 2009 administrative decision, the RO held that the Veteran was not considered eligible to receive Chapter 30 benefits because his request for Chapter 33 benefits is considered an irrevocable election. 5. The Veteran initially completed and filed electronically the appropriate form seeking educational benefits under Chapter 33 in lieu of benefits under Chapter 30. CONCLUSION OF LAW The criteria for an irrevocable election for education benefits under the Post-9/11 GI Bill program in lieu of benefits under the MGIB program have been met, and the irrevocable election for Post-9/11 GI Bill benefits cannot be rescinded. 38 U.S.C.A. §§ 3301-24 (West Supp. 2010); 38 C.F.R. §21.9520 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset of this decision, the Board finds that the provisions of the Veterans Claims Assistance Act of 2000 (the VCAA) Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.A. § 5100 to 5107 (West 2002)) are not applicable to this claim on appeal because the appeal turns on a matter of law and not on the underlying facts or development of the facts. See Manning v. Principi, 16 Vet. App. 534, 542 (2002). The United States Court of Appeals for Veterans Claims (Court) found in Manning that the VCAA can have no effect on appeals that are decided on an interpretation of the law as opposed to a determination based on facts. Also, see Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Thus, the Board finds that any deficiency in VA's VCAA notice or development action is harmless error. In the present appeal, the Veteran contends he was erroneously informed that the apprenticeship training program he wished to pursue qualified for educational benefits under the Post-9/11 GI Bill. He further asserts that, upon filing his application for educational benefits, he was completely unaware that his election for Chapter 33 benefits was irrevocable and that he would therefore be unable to "switch" his benefits so as to receive benefits under Chapter 30 if necessary. See June 2010 Statement of Veteran. The Veteran originally filed an application for educational benefits under the Post-9/11 GI Bill program via an electronically filed form, which was received by the RO in June 2009. In the application, he marked that he wished to pursue an apprenticeship or on-the-job training program, and he requested benefits effective July 1, 2009. In July 2009, the Veteran received notice that his application for educational benefits under the Post-9/11 GI Bill had been approved and that he was entitled to benefits for an approved program of education or training under Chapter 33 beginning August 1, 2009. He was advised to take the award letter to his school's certifying official for processing and that the school must certify his enrollment before he could get paid. The letter specifically stipulated that individuals who elect to receive Post-9/11 GI Bill benefits by relinquishing eligibility under the MGIB program, can also receive educational assistance for training programs that were not authorized to be available under the provisions of the Post-9/11 GI Bill, but were available under the relinquished benefit. Such training programs include, but are not limited to, approved on-the-job training, apprenticeship training, flight training, correspondence training, and non-college degree programs offered at institutions other than colleges or universities. The letter requested that the Veteran complete VA Form 22-1995 upon selecting the program or school for which he wished to receive education benefits. The Veteran completed and submitted VA Form 22-1995 in July 2009, and indicated that he wished to pursue an apprenticeship training program at the National Joint Apprenticeship and Training Committee (NJATC). He subsequently filed another application via an electronically filed VA Form 22-1990 which was received by the RO in November 2009. In the application, he sought educational assistance for the same apprenticeship training program but solely under the MGIB program. This application was received by the RO in November 2009. In the December 2009 administrative decision, the RO denied the Veteran's request, and determined that the Veteran's election for benefits under the Post-9/11 GI Bill was irrevocable. In his January 2010 NOD, the Veteran explained the reasoning behind his decision to file two separate applications seeking educational benefits under both Chapter 33 and Chapter 30 benefits. He claims that he initially applied for educational benefits in order to pursue a high voltage lineman apprenticeship program, and received a letter certifying his entitlement to benefits for an approved program of education or training under the Post-9/11 GI Bill in July 2009. However, according to the Veteran, after submitting his application, he was informed by a friend of his that the Post-9/11 GI Bill could not be applied to apprenticeships or on-the-job training programs. He further states that, because he did not hear anything regarding his educational assistance after the first initial approval letter, he reapplied for benefits and requested a change of educational benefits under the MGIB program rather than the Post-9/11 GI Bill Program. In his June 2010 statement, the Veteran asserts that he did not know his election for benefits under the Post-9/11 GI Bill program would be irrevocable. First, as a preliminary matter, the Board notes that it is unclear whether information provided to the Veteran by his friend - that apprenticeship and/or job training programs are not covered under the Post-9/11 GI Bill - is correct. The Board observes that the July 2009 letter specifically informed the Veteran that he must deliver the acceptance letter to the school of his choice in order for the school to certify his enrollment before he can get paid. There is no evidence in the claims folder that the Veteran was issued a certificate of enrollment by his school, or that the Veteran has attempted to deliver the July 2009 letter to his school for issuance of a certificate of enrollment. As such, the Board advises the Veteran to review the July 2009 letter from the RO, and if he has not yet done so, to deliver this letter to his school to determine whether the training program he wishes to pursue qualifies for Post-9/11 GI Bill benefits, and if so, to provide him with a certificate of enrollment so he may receive his educational benefits. With respect to whether the Veteran's election for Chapter 33 benefits is irrevocable, the Board turns to the designated statutory and regulatory provisions. In accordance with 38 C.F.R. § 21.9520(c)(1)(i), after an individual has applied for basic educational assistance benefits under the provisions of Chapter 33, and has met the minimum service requirements in paragraph (a) and (b), that individual then makes an irrevocable election to receive benefits under 38 U.S.C. chapter 33 by relinquishing eligibility under either 38 U.S.C. chapter 30, or 10 U.S.C. chapter 106a, 1606, or 1607. Pursuant to 38 C.F.R. §21.9520(c)(2), an individual may make an irrevocable election to receive benefits under this chapter by properly completing VA Form 22-1990, submitting a transfer-of-entitlement designation under this chapter to the Department of Defense, or submitting a written statement that includes the following: (i) identification information (including the name, social security number and address); (ii) if applicable, an election to receive benefits under chapter 33 in lieu of benefits under one of the applicable chapters listed in paragraph (c)(1)(i) of this section (e.g., 'I elect to receive benefits under the Post-9/11-GI Bill in lieu of benefits under the Montgomery GI Bill - Active Duty (chapter 30) program.'); (iii) the date the individual wants the election to be effective (e.g., 'I want this election to take effect on August 1, 2009.'). An election request for an effective date prior to August 1, 2009, will automatically be effective August 1, 2009; and (iv) an acknowledgement that the election is irrevocable (e.g., 'I understand that my election is irrevocable and may not be changed.'). The criteria listed under 38 C.F.R. §21.9520(c)(2), are disjunctive rather than conjunctive which means only one of the requirements under this provision must be met for irrevocability to occur. See Johnson v. Brown, 7 Vet. App. 95 (noting that only one disjunctive "or" requirement must be met to satisfy the regulatory provision.) Thus, based on the above-referenced regulatory provisions, an election to receive benefits under Chapter 33 can become irrevocable upon completion and submission of a VA Form 22-1990. A review of the Veteran's claims file reflects that he did in fact complete the appropriate form. In the alternative, a Veteran has the option to either submit a transfer-of-entitlement designation under this chapter to the Department of Defense, or submit a written statement which includes the four specified criteria listed under 38 C.F.R. §21.9520(c)(2)(i)-(iv) in order for irrevocability to occur. If the Veteran has opted to submit a written statement, then his or her election to receive benefits under Chapter 33 becomes irrevocable only when all four specified criteria are met. In this case, the irrevocability criteria listed under 38 C.F.R. § 21.9520(c)(2) has been met as the record contains a fully completed electronic (online) application. While this document does not contain an acknowledgement on the part of the Veteran reflecting awareness of the irrevocability criteria, the regulation does not explicitly impose this requirement on VA Form 22-1990. Indeed, the regulation does not specify that a completed VA Form 22-1990 must include a statement from the Veteran acknowledging that his election for Post-9/11 GI Bill program in lieu of benefits under the MGIB program is irrevocable. The regulation only requires that VA Form 22-1990 be properly completed for irrevocability to take effect. Quite simply, acknowledgement by the Veteran that his election for Chapter 33 benefits in lieu of Chapter 30 benefits is irrevocable is only necessary when the Veteran has opted to submit a written statement seeking Chapter 33 benefits, as an alternative to properly completing the VA Form 22-1990 or submitting a transfer-of-entitlement designation under this chapter to the Department of Defense for these benefits. Furthermore, to the extent that the Veteran maintains that he was not aware of or informed that his election for such benefits would be irrevocable, it has been held by the Courts that such matters as the Veteran contends are no exception to VA regulations. See Morris v. Derwinski, 1 Vet. App. 260 (1991), citing Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-85 (1947). The Court of Appeals for Veterans Claims has noted that the United States Supreme Court has recognized that persons dealing with the United States government are charged with knowledge of federal statutes and lawfully promulgated agency regulations, regardless of actual knowledge or hardship resulting from innocent ignorance. See Morris, 1 Vet. App. at 260. Thus, the Board finds that the irrevocability requirements set forth under 38 C.F.R. § 21.9520(c)(2) have been met and the Veteran did make an irrevocable election for educational benefits under the Post-9/11 GI Bill program when he completed the electronic (online) application. As such, his election for Post-9/11 GI Bill benefits is irrevocable and cannot be rescinded. ORDER The Veteran's election for Post-9/11 GI Bill benefits is irrevocable, and his appeal for a rescission of these benefits is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs