Citation Nr: 1124476 Decision Date: 06/28/11 Archive Date: 07/06/11 DOCKET NO. 10-31 662A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to basic eligibility for educational benefits under Chapter 30, Title 38, United States Code. ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from November 1980 to February 2001. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma (RO). In the Veteran's November 2009 application for VA education benefits, she indicated that she was only applying for benefits under 38 U.S.C.A. Chapter 30, the Montgomery GI Bill (MGIB). As a result, the December 2009 rating decision and the June 2010 statement of the case only addressed the Veteran's eligibility for MGIB benefits, and discussed benefits under 38 U.S.C.A. Chapter 32, Post-Vietnam Era Veterans' Educational Assistance Act Program (VEAP) only in the context of whether the MGIB benefits were warranted through a roll-over from VEAP benefits. Accordingly, a claim of entitlement to basic eligibility for educational benefits under 38 U.S.C.A. Chapter 32 is not before the Board. However, in the February 2010 notice of disagreement, the Veteran stated that "if I am not qualified [for MGIB benefits] I am qualified for Category 4: [VEAP]," while in the August 2010 appeal to the Board she stated that "I was on this Category 4." Accordingly, the evidence of record indicates that the Veteran has raised the issue of entitlement to basic eligibility for educational benefits under 38 U.S.C.A. Chapter 32. This issue has not been developed for appellate review and is therefore referred to the RO for appropriate disposition. FINDINGS OF FACT 1. The Veteran's period of active military service was from November 1980 to February 2001. 2. The evidence of record does not show that by October 31, 2001, the Veteran made an irrevocable election to receive benefits under Chapter 30 in lieu of benefits under Chapter 32. 3. The evidence of record does not show that the Veteran ever contributed to the MGIB education benefit program at any point during her period of military service. CONCLUSION OF LAW The criteria for basic eligibility to VA educational assistance benefits under 38 U.S.C.A. Chapter 30, MGIB, and Chapter 34 (Vietnam Era GI Bill), have not been met. 38 U.S.C.A. §§ 3001-3036, 3452, 3462 (West 2002 & Supp. 2010); 38 C.F.R. §§ 21.1031, 21.1032, 21.7042, 21.7044 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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). However, this case does not involve a claim for benefits under 38 U.S.C.A. Chapter 51; rather, since the Veteran is seeking eligibility for education benefits under 38 U.S.C.A. Chapter 30 she is not a "claimant" within the meaning of the VCAA statute. See Lueras v. Principi, 18 Vet. App. 435, 438-439 (2004) (VCAA notice and assistance provisions do not apply to chapter 53 proceedings involving special provisions relating to benefits); Sims v. Nicholson, 19 Vet. App. 453, 456 (2006) (VCAA does not apply to application for restoration of competency because it is not a chapter 51 claim for benefits). Since this is a matter under Chapter 30, the VCAA provisions are not applicable to this appeal. In this case, the Veteran asserts that her active service from November 1980 to February 2001 qualifies her for educational benefits under the provisions of 38 U.S.C.A. Chapter 30, regardless of whether she made contributions to a benefits fund during her period of active military service. 38 U.S.C.A. Chapter 30 sets forth provisions to allow for educational assistance for members of the Armed Forces after their separation from military service. See 38 U.S.C.A. §§ 3001-3036. VA will pay Chapter 30 educational assistance to an eligible Veteran while she is pursuing approved courses in a program of education. 38 C.F.R. § 21.7130 (2010). A threshold requirement for Chapter 30 educational assistance is the completion of certain requisite service. In order to be entitled to Chapter 30 educational assistance, an individual must first become a member of the Armed Forces or first enter active duty as a member of the Armed Forces after June 30, 1985, and in the case of an individual whose obligated period of active duty is three years or more, serve at least three continuous years of active duty. See 38 U.S.C.A. § 3011(a) (1) (A); 38 C.F.R. § 21.7042(a) (1)-(2). In this case, the evidence shows that the Veteran first entered active military service in November 1980, nearly five years before the MGIB came into effect. Therefore, she does not meet the initial eligibility requirements for Chapter 30 MGIB benefits under 38 U.S.C.A. § 3011(a)(1)(A), since the Veteran did not first become a member of the Armed Forces or first entered active duty as a member of the Armed Forces after June 30, 1985. In addition, eligibility for Chapter 34 educational assistance (Vietnam Era GI Bill) was established for those Veterans who (A) served for a period of more than 180 days, any part of which occurred after January 31, 1955, and before January 1, 1977, and who were discharged or released therefrom under conditions other than dishonorable; or (B) who contracted with the Armed Forces and were enlisted in or assigned to a reserve component prior to January 1, 1977, and as a result of such enlistment or assignment served on active duty for a period of more than 180 days, any part of which commenced within 12 months after January 1, 1977, and were discharged or released therefrom under conditions other than dishonorable; or (C) were discharged or released from active duty, any part of which was performed after January 31, 1955, and before January 1, 1977, or following entrance into active service from an enlistment provided for under subparagraph (b) because of a service-connected disability. 38 U.S.C.A. § 3452(a) (1). As indicated above, the Veteran first entered active duty in November 1980. Because she did not serve on active duty for 180 days between January 31, 1955, and January 1, 1977, she does not qualify for Chapter 34 benefits. In 1996, the Veterans' Benefits Improvements Act of 1996, Pub. L. No. 104- 275, 110 Stat. 3322 (Oct. 9, 1996) was enacted which extended eligibility for the Chapter 30, MGIB, program to additional Chapter 32, VEAP, participants. See Public Law 104-275, § 106 (presently codified at 38 U.S.C.A. § 3018C). Under the provisions of Section 106 of Public Law 104-275, a Chapter 32 participant with money in the Chapter 32 fund could be eligible for Chapter 30 benefits if, in pertinent part, the individual was a participant in Chapter 32 (VEAP) on October 9, 1996; served on active duty on October 9, 1996; completed the requirements of a secondary school diploma; if discharged or released prior to October 9, 1997, was honorably discharged or released; and, prior to October 9, 1997 made an irrevocable election to receive benefits under this section in lieu of benefits under Chapter 32. See 38 U.S.C.A. § 3018C (a) (West 2002); Public Law 104- 275, § 106 (a). The evidence of record does not show that, prior to October 9, 1997, she made an irrevocable election to receive benefits under Chapter 30 in lieu of benefits under Chapter 32. Accordingly, she is not entitled to eligibility for Chapter 30 benefits under the provisions of the Veterans' Benefits Improvements Act of 1996. Finally, statutory changes set forth in the Veterans Benefits and Health Improvement Act of 2000 (VBHIA) provided for an additional year (beginning on November 1, 2000, and ending on October 31, 2001) for an individual to make an irrevocable election to enroll in Chapter 30. See VBHIA, Pub. L. No. 106- 419, § 104, 114 Stat. 1822 (2000) (codified as amended at 38 U.S.C. § 3018C). Public Law 106-419 requires that the election of MGIB benefits be made within one year following enactment of Section 104, or by October 31, 2001. To be qualified to make the conversion, an individual must: (A) have been a participant in the VEAP benefits program on or before October 9, 1996; (B) have continuously served on active duty since October 9, 1996, through at least April 1, 2000; (C) have completed secondary school diploma requirements or earned twelve college credits, and (D) have been separated from service with an honorable discharge. To make the conversion, the individual must pay $2,700, either through deductions from service pay, or by payment to VA. It is under this regulation, the VBHIA that the Veteran specifically claims she is entitled to education benefits. In particular, the Veteran focuses on the VBHIA's lack of a requirement to have contributed to the VEAP to gain MGIB benefits. However, the VBHIA only provides that a VEAP contribution is unnecessary if the Veteran contributed funds to the MGIB. In this case, the evidence of record does not show that the Veteran elected MGIB during the one-year period beginning on November 1, 2000, and ending October 31, 2001, and that she ever contributed to the MGIB education benefit program at any point during her period of military service. Accordingly, she is not entitled to eligibility for Chapter 30 benefits under the provisions of the VBHIA. The Board is sympathetic to the Veteran's contentions that she was never informed of the requirements for participation in the MGIB education benefits program during her period of military service. However, regardless of any regulations which may require the Department of Defense (DoD) to inform a service member about basic eligibility requirements for educational assistance benefits, the remedy for breach of such an obligation by the DoD cannot involve payment of VA education benefits where statutory requirements for such benefits are not met. Harvey v. Brown, 6 Vet. App. 416, 424 (1994). In this case, the applicable laws and regulations as written preclude a grant of benefits, even on an equitable basis. See 38 U.S.C.A. §§ 503, 7104; see also 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 that has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). The Board is without the authority to disregard the applicable laws, notwithstanding any extenuating circumstances that may have prevented the Veteran from ever electing to receive benefits under Chapter 30 in lieu of benefits under Chapter 32 or contributing to the MGIB education benefits program during her period of military service. Congress did not enact any exceptions to the above-discussed legal provisions that would permit a grant of the requested benefits. As the disposition of this claim is based on the law, and not on the facts of the case, the claim must therefore be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). (CONTINUED ON NEXT PAGE) ORDER Eligibility for VA educational benefits under Chapter 30, Title 38, United States Code, is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs