Citation Nr: 1122995 Decision Date: 06/15/11 Archive Date: 06/28/11 DOCKET NO. 10-22 593A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to education benefits under the Post-9/11 Veterans Educational Assistance Act of 2008 (Post 9/11 GI Bill). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Evan M. Deichert, Associate Counsel INTRODUCTION The Veteran had active service from October 2001 to July 2003. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 2010 decision by the Department of Veterans Affairs (VA) Buffalo, New York Regional Processing Office. Since then, the Atlanta Education Center in the Atlanta, Georgia Regional Office has assumed jurisdiction over the Veteran's claim. FINDING OF FACT The Veteran's period of active service is counted for purposes of repayment of an education loan. CONCLUSION OF LAW The Veteran is not entitled to educational benefits under the Post 9/11 GI Bill. 10 U.S.C.A. § 2171, 38 U.S.C.A. §§ 503, 1725, 3301-3324, 7104 (West 2002); 38 C.F.R. §§ 21.9500-9770 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Post-9/11 Veterans Educational Assistance Act of 2008 (popularly known as the Post 9/11 GI Bill) expanded educational benefits for veterans who served since September 11, 2001. See 38 U.S.C.A. §§ 3301-3324; 38 C.F.R. §§ 21.9500-9770. These benefits are available to veterans who meet prescribed length of service and character of discharge requirements. Id. at § 3311. Certain veterans whose enlistment was predicated on receiving other educational benefits are barred from eligibility for benefits under the Post 9/11 GI Bill. Included among those excluded are veterans whose service is treated under educational loan repayment programs. 38 U.S.C.A. § 3322(b) ("A period of service counted for purposes of repayment of an education loan under chapter 109 of title 10 may not be counted as a period of service for entitlement to educational assistance under this chapter."). Here, the Veteran sought benefits under the Post 9/11 GI Bill in a December 2009 claim. Information from the Department of Defense reflects, however, that the Veteran participated in the Loan Repayment Program. See Title 10, Chapter 109, codified at 10 U.S.C.A. § 2171. As noted above, periods of service counted for purposes of repayment of an educational loan may not be counted as a period of service for entitlement to Post 9/11 GI Bill benefits. As the Veteran's entire period of active service was counted for this purpose, she is ineligible for benefits under the Post 9/11 GI Bill. In her January 2010 Notice of Disagreement, the Veteran stated that though she enlisted under the Loan Repayment Program, she never received any disbursement for her loans. Whether this is true is ultimately immaterial, as a plain reading of the statute is clear that service counted for the purposes of repayment of an education loan, may not be counted as a period of service for entitlement under the Post 9/11 GI Bill. While the Board empathizes with the Veteran and is sympathetic to her situation, there simply is no legal basis to find her eligible for education assistance benefits under the Post 9/11 GI Bill. The Board is bound by the law, and its decision is dictated by the controlling statutes and regulations. 38 U.S.C.A. § 1725. The Board is without authority to grant benefits simply because it might perceive the result to be equitable. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). "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." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). 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). Finally, the Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). The VA General Counsel has held that the notice and duty to assist provisions of the VCAA are inapplicable where, as here, undisputed facts render a claimant ineligible for the benefit claimed, and further factual development could not lead to an award. VAOPGCPREC 5-2004 (June 23, 2004); VAOPGCPREC 2-2004 (March 9, 2004); see also Mason v. Principi, 16 Vet. App. 129, 132 (2002); DelaCruz v. Principi, 15 Vet. App. 143 (2002) (VCAA inapplicable where the law, not the factual evidence, is dispositive); Smith v. Gober, 14 Vet. App. 227 (2002) (VCAA has no effect on appeal limited to interpretation of law); Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the provisions regarding notice and assistance is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). As it is undisputed that the Veteran enlisted under the Loan Repayment Program and as the governing statutes are clear that such enlistment bars her receipt of benefits under the Post 9/11 GI Bill, the law is controlling in this case, and the VCAA is inapplicable. ORDER Education benefits under the Post 9/11 GI Bill are denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs