Citation Nr: 1124491 Decision Date: 06/28/11 Archive Date: 07/06/11 DOCKET NO. 10-47 112A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to 38 U.S.C. Chapter 33 (Post-9/11 GI Bill) full-time education benefits in excess of 21 months and 27 days. ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran served on active duty from June 1980 to June 1984 and from April 1988 forward, at least through February 2010, at which time he remained on active duty. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in September 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. FINDING OF FACT The Veteran received Chapter 32 VA education benefits for the periods from September 20, 1984, to June 15, 1985, from September 26, 1985, to June 13, 1986, and from September 25, 1986, to June 13, 1987, for a total of 26 months and 3 days. CONCLUSION OF LAW The criteria for full-time education benefits in excess of 21 months and 27 days pursuant to United States Code Title 38, Chapter 33, are not met. 38 U.S.C.A. § 3695(a)(4) (West 2002 & Supp. 2010). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision the Board finds that during the years 1984 through 1987 the Veteran used 26 months and 3 days of Chapter 32 education benefits. Because combined Chapter 32 and Chapter 33 benefits may not exceed a total of 48 months of full-time benefits, the Board will deny the Veteran's appeal for full-time Chapter 33 education benefits in excess of 21 months and 27 days. The Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A." or "38 U.S.C."); precedent opinions of the VA Office of General Counsel (VAOPGCPREC); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) defines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. First, VA has a duty to notify the Veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103 (West 2002); 38 C.F.R. § 3.159(b). Second, VA has a duty to assist the Veteran in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c). However, the VCAA recognizes certain circumstances where VA will refrain from or discontinue providing assistance. VA will refrain from providing assistance in obtaining evidence for a claim if the substantially complete application for benefits indicates that there is no reasonable possibility that any assistance VA would provide to the claimant would substantiate the claim. VA will discontinue providing assistance in obtaining evidence for a claim if the evidence obtained indicates that there is no reasonable possibility that further assistance would substantiate the claim. Circumstances in which VA will refrain from or discontinue providing assistance in obtaining evidence include, but are not limited to the claimant's ineligibility for the benefit sought because of lack of qualifying service, lack of veteran status, or other lack of legal eligibility. See C.F.R § 3.159(d). Further, under 38 U.S.C. § 5103(a), VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit, and under 38 U.S.C. § 5103A, VA is not required to assist a claimant in developing evidence to substantiate a claim where there is no reasonable possibility that such aid could substantiate the claim because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. See also VAOPGCPREC 5-2004. The Veteran has received Chapter 32 VA education benefits for the periods from September 20, 1984, to June 15, 1985, from September 26, 1985, to June 13, 1986, and from September 25, 1986, to June 13, 1987, for a total of 26 months and 3 days. Thus, as a matter of law, he cannot be entitled to Chapter 33 education benefits in excess of 26 months and 3 days subtracted from 48 months, which equals the currently awarded 21 months and 27 days of full time Chapter 33 benefits. 38 U.S.C.A. § 3695(a) (West 2002 & Supp. 2010). The benefit on appeal is denied by reason of application of federals laws that limit statutory entitlement to Chapter 33 education benefits to overwhelming documentary evidence-that is, it is denied based on a lack of statutory entitlement under the law. Any further notice or assistance in development of the claim would therefore necessarily be futile and would give rise to no reasonable possibility of substantiating the claim. Accordingly, no further notice or development under the VCAA is warranted. Additionally, the Board notes that the Veteran has demonstrated actual knowledge of what would be required to substantiate his claim, as described in the September 2009 award letter from which he appealed-evidence that he received Chapter 32 benefits of less than 26 months and 3 days during the years 1984 to 1987. He has expressed his recollection that he received ROTC scholarship benefits and therefore cancelled his Chapter 32 benefits for the 1985-1987 and 1986-1987 school years, so that he would have used fewer than 26 months and 3 days of Chapter 33 benefits, and has asked VA to review its documentation and verify whether his recollection is correct. As the Veteran has actual knowledge of what would be required to substantiate his claim further notice under the VCAA would serve no useful purpose. The Veteran's appeal for additional Chapter 33 benefits was initiated by a notice of disagreement with a September 2009 decision granting full-time Chapter 33 benefits of 21 months and 27 days. At that point the Veteran's initial claim for Chapter 33 benefits was substantiated, fulfilling the statutory purpose of VCAA notice, and his notice of disagreement did not trigger additional notice requirements under the VCAA. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 C.F.R. § 3.159; 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice arises upon receipt of a notice of disagreement). As to the duty to assist, there is no additional evidence and the Veteran has identified no additional evidence that might plausibly refute the documentation of record. This documentation includes signed documents from the Veteran, VA decisions, and enrollment certifications for the years 1984 through 1987 confirming he received 26 months and 3 days of Chapter 32 benefits during those years. As a consequence, even if the VCAA duty to notify and assist were found applicable in this matter, there is no reasonable possibility that further notice or assistance would result in substantiation of the claim. Merits of the Claim The Veteran served on active duty from June 1980 through June 1984, and from April 1988 forward. The claims file includes the following pertinent documents: o A VA Form 22-8821, Application for Educational Assistance under the Post-Vietnam Era Veterans Educational Assistance Program (VEAP) (Chapter 32, United States Code Title 38), signed and dated by the Veteran on September 15, 1984, and received by the RO in Portland, Oregon, in October 1984. o A VA Form 22-1999, Enrollment Certification, for VA education benefits for a full-time program of pre-engineering for the period from September 20, 1984 to June 15, 1985. This form was signed and dated by a Veteran's Clerk at Oregon State University in October 1984. o A VA Form 22-1995, Request for Change or Program, signed and dated by the Veteran on April 11, 1985. The new program was to pursue a Bachelor of Arts degree in business. o A VA Form 22-1999, Enrollment Certification, for VA education benefits for a full-time program to pursue a Bachelor of Arts in business for the period from April 1, 1985, to June 15, 1985. This form was signed and dated by a Veteran's Clerk at Oregon State University in April 1985. o A VA Form 22-1999, Enrollment Certification, for VA education benefits for a full-time program to pursue a Bachelor of Sciences degree in business for the period from September 26, 1985, to June 13, 1986. This form was signed and dated by a Veteran's Clerk at Oregon State University in October 1985. o An October 1985 letter from the RO in Portland, Oregon, to the Veteran, informing him that he had been awarded educational assistance at a monthly rate of $270 for full-time education from September 26, 1985, to June 13, 1986. The Veteran was advised that if he continued in school, monthly payments would be mailed to him at the beginning of each month for the preceding month's training; that he must inform the school and VA of any change in his enrollment; and that periodically VA would verify the Veteran's enrollment with the school. o A VA Form 22-1999, Enrollment Certification, for VA education benefits for a full-time program to pursue a Bachelor of Arts degree in business for the period from September 25, 1986, to June 13, 1987. This form was signed and dated by a Veteran's Clerk at Oregon State University in September 1986. On the form is the handwritten notation "Ch. 32." o An October 1986 letter from the RO in Portland, Oregon, to the Veteran, informing him that he had been awarded educational assistance at a monthly rate of $270 for full-time education from September 25, 1986, to June 13, 1987. The Veteran was advised that if he continued in school, monthly payments would be mailed to him at the beginning of each month for the preceding month's training; that he must inform the school and VA of any change in his enrollment; and that periodically VA would verify the Veteran's enrollment with the school. o A VA Form 4-5281, Application for Refund of Educational Contributions (VEAP, Chapter 32, Title 38 U.S.C.). The Veteran indicated by a checked box that he was disenrolling and applying for a refund for the reason that his education was completed. He signed and dated the application on December 17, 1987. The form was notarized on December 17, 1987, and signed by a VA Regional Office Finance Officer on December 22, 1987. o A Chapter 32 Participant Account Summary data sheet dated December 21, 1987, indicating that the Veteran had contributed $2,700 (under law matched by the Federal Government at a rate of 2:1) during active service, that he used $2,349 of those contributions over a period of 26.1 months, resulting in expenditure of $7,047 of education benefits to which he was entitled, with a remaining balance of 1,053 dollars. Therefore VA owed to the Veteran an unused balance of his contributions of $351 (one-third of $1053). o A Chapter 32 Participant Contribution History data printout, dated December 21, 1987, indicating that the Veteran had contributed $2,700 to the VEAP program, had used 26.1 months of full-time benefits, and was due a refund of $351. Consistent with the above, all VA data and all VA adjudications indicate that the Veteran received 26 months and 3 days of full-time Chapter 32 benefits while at Oregon State University from September 20, 1984, to June 15, 1985, from September 26, 1985 to June 13, 1986, and from September 25, 1986, to June 13, 1987. In April 1988 the Veteran resumed active duty. He served through at least February 2010 and as of the time of the most recent adjudication of this appeal continued to serve on active duty. VA education database information indicates that he was commissioned in April 1988 under the Reserve Officers' Training Corps (ROTC) program. In September 2009 the Veteran applied for Chapter 33 (Post-9/11 GI Bill) VA education benefits. That same month VA awarded the Veteran 21 months and 27 days of full-time benefits, with no delimiting date since the Veteran was still on active duty. 38 U.S.C.A. § 3695 (Limitation on period of assistance under two or more programs), section (a) (West 2002 & Supp. 2010) provides as follows: (a) The aggregate period for which any person may receive assistance under two or more of the provisions of law listed below may not exceed 48 months (or the part-time equivalent thereof): (1) Parts VII or VIII, Veterans Regulation numbered 1(a), as amended. (2) Title II of the Veterans' Readjustment Assistance Act of 1952. (3) The War Orphans' Educational Assistance Act of 1956. (4) Chapters 30, 32, 33, 34, 35, and 36. (5) Chapters 107, 1606, 1607, and 1611 of title 10. (6) Section 903 of the Department of Defense Authorization Act, 1981 (Public Law 96-342, 10 U.S.C. 2141 note). (7) The Hostage Relief Act of 1980 (Public Law 96-449, 5 U.S.C. 5561 note). (8) The Omnibus Diplomatic Security and Antiterrorism Act of 1986 (Public Law 99-399). Thus, under 38 U.S.C.A. § 3695(a)(4), a Veteran may not receive more than 48 months of education benefits combined under Chapters 32 and 33 of U.S.C. Title 38. Accordingly, the greatest amount of Chapter 33 (post-September 11, 2001, VA education benefits) full-time education benefits to which the Veteran may be entitled is 48 months less the 26 months and 3 days already used by the Veteran under Chapter 32, which equals a period of 21 months and 27 days of full-time education benefits. As a result, the claim for a period of Chapter 33 full-time education benefits of greater than 21 months and 27 days is not warranted under the law. 38 U.S.C.A. § 3695(a)(4). The Veteran's recollection is that for his second and third years at Oregon State University he was receiving an ROTC scholarship, and had after his first year at Oregon State University received a refund of about $1,700 in VEAP contributions from VA in light of his receipt of educational support, including a scholarship, through the ROTC program (see notice of disagreement received in November 2009, VA Form 9 received in December 2010). The Veteran's recollection appears sincere, particularly since VA education data indicates that he was commissioned pursuant to the ROTC program for reserve duty in June 1987 and for active duty in April 1988. However, the documentary evidence of record, including documentary evidence bearing the Veteran's own signature in December 1987, is overwhelming that the Veteran continued to receive VA Chapter 32 VEAP education benefits through the time of completion of his course of education at Oregon State University in 1987 and received a refund of $351 rather than $1700 in VEAP contributions, and not in 1985, but rather in December 1987. The Board has reviewed the record closely in light of the Veteran's contentions and concludes that there is no reasonable possibility that the Veteran's recollection that he was in receipt of an ROTC scholarship in lieu of VA VEAP benefits is correct in light of the overwhelming documentary evidence of record. This includes documents detailed above, such as certificates of enrollment from a Veteran's Clerk at Oregon State University for school years 1984-1985, 1985-1986 and 1986-1987, indicating that the Veteran was seeking certification for the purpose of receipt of VA Chapter 32 (VEAP) education benefits; award letters from the Portland, Oregon, RO, of VA education benefits at a rate or $270 a month for the 1985-1986 and 1986-1977 school years; and a notarized document bearing the Veteran's signature in December 1987 indicating that he sought a refund of his unused Chapter VEAP contributions because he had completed his course of education (rather than as the Veteran now recalls a refund of $1,700 of VEAP contributions in 1985 because he had received an ROTC scholarship). Further, the calculation of a $351 refund in December 1987, as detailed above, is premised upon detailed VA data as of December 1987 showing that he had used Chapter 32 VEAP benefits for all three of his years at Oregon State University. In consideration of the above, the Veteran's appeal is denied under the law as applied to overwhelming evidence against the Veteran's claim. That is, the claim is denied due to the absence of legal merit, or the lack of entitlement under the law. Accordingly, the benefit of the doubt doctrine is not for application. Sabonis v. West, 6 Vet. App. 426, 430 (1994). ORDER The Veteran's appeal for full-time education benefits in excess of 21 months and 27 days pursuant to United States Code Title 38, Chapter 33, is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs