Citation Nr: 1124664	
Decision Date: 06/29/11    Archive Date: 07/06/11

DOCKET NO.  10-30 502	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Whether the Veteran made an irrevocable election for educational assistance under Chapter 33, Title 38, United States Code in lieu of benefits under the educational assistance under Chapter 30, Title 38, United States Code.


ATTORNEY FOR THE BOARD

W. Yates, Counsel



INTRODUCTION

The Veteran served on active duty from December 1998 to June 2003.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from March and April 2003 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.


FINDING OF FACT

In January 2010, the Veteran filed an electronic application for educational assistance under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) which included an irrevocable election of Chapter 33 benefits in lieu of educational assistance under Chapter 30, Title 38, United States Code (Montgomery GI Bill).


CONCLUSION OF LAW

The Veteran's election for educational benefits under the Post-9/11 GI Bill program in lieu of benefits under the Montgomery GI Bill program is irrevocable.  38 U.S.C.A. §§ 3301-24 (West Supp 2010); 38 C.F.R. § 21.9520 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board finds that the statutory and regulatory notice and duty to assist provisions are not applicable in this case because the issue presented is solely one of statutory interpretation.  See Manning v. Principi, 16 Vet. App. 534, 542 (2002); see also 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, 3.326(a) (2010).  The Veterans Claims Assistant Act of 2000 (VCAA) has no effect on appeals that are decided on an interpretation of the law as opposed to a determination based on fact.  Manning, 16 

Vet. App. at 542; see also 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.

The facts of this case may be briefly summarized:  In January 2010, the Veteran applied for educational benefits under the Post-9/11 GI Bill program via an electronically filed VA Form 22-1990.  The Veteran requested these benefits effective August 1, 2009.  See generally 38 U.S.C.A. §§ 3301-24; 38 C.F.R. § 21.9520.

In February 2010, the Veteran received notice that his application for educational benefits under the Post-9/11 GI Bill program was approved.  He was advised to take the award letter to his school's certifying official for processing.

In March 2010, the RO notified the Veteran that his educational benefits under the Post-9/11 GI Bill program had been approved for the term beginning November 17, 2009 through March 23, 2010, based upon receipt of enrollment information provided by University of Phoenix.

In April 2010, the RO notified the Veteran that his educational benefits under the Post-9/11 GI Bill program had been approved for the term beginning March 30, 2010 through May 4, 2010, based upon receipt of enrollment information provided by University of Phoenix.

In April 2010, the Veteran filed a notice of disagreement.  He indicated that he "may have been" misinformed as to the benefits available to him by the representative at the University of Phoenix.  He indicated that he wanted to rescind his choice of educational benefits under the Post-9/11 GI Bill in lieu of the benefits available under the Montgomery GI Bill program.

In denying the Veteran's request, the RO determined that the Veteran's election of benefits under the Post-9/11 GI Bill program was irrevocable.

An individual may not receive education assistance under two or more educational benefit programs concurrently, and must elect under which chapter or provisions to receive educational assistance.  See 38 U.S.C.A. § 3322.  In implementing this law, VA promulgated 38 C.F.R. § 21.9520(c) which requires that an individual seeking benefits under the Post-9/11 GI Bill to make an irrevocable election to receive those benefits by relinquishing eligibility under either Montgomery GI Bill or 10 U.S.C.A. Chapter 106a, 1606, or 1607 (Reserve Educational Assistance Program).  See 38 C.F.R. § 21.9520(c).

As noted above, the Veteran applied for educational benefits under the Post-9/11 GI Bill program via an electronically filed VA Form 22-1990.  VA Form 22-1990 includes an irrevocable election to receive benefits under the Post-9/11 GI Bill as this is a specific requirement to obtain these benefits.  See 38 C.F.R. § 21.9520(c)(1)(i).  There is a presumption of regularity to all manner of VA processes and procedures.  See Woods v. Gober, 14 Vet. App. 214, 220 (2000) (citing INS v. Miranda, 459 U.S. 14, 18 (1982); United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926).  Thus, VA's electronic application program is deemed to have been properly developed to comply with the legal requirements for these benefits, including the irrevocable election as required under 38 C.F.R. § 21.9520(c)(1)(i).  Moreover, a review of VA's website for filing the electronic application, http://www.gibill.va.gov/, includes general information noting that the election for benefits under the Post-9/11 GI Bill is irrevocable.  See http://www.gibill.va.gov/documents/pamphlets/ch33_pamphlet.pdf.  Finally, the Veteran does not contest the application process itself, but instead has based his appeal on his having been misinformed by the University of Phoenix as to the benefits available under the different benefit programs.

Under these facts, the Board finds that the Veteran made an irrevocable election for educational benefits under the Post-9/11 GI Bill in lieu of benefits under the Montgomery GI Bill.  The Board is without the authority to disregard the applicable laws.  Congress did not enact any exceptions to the above-discussed legal provisions that would permit a grant of the requested benefits.


ORDER

The appeal is denied.



____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs