Citation Nr: 1128041 Decision Date: 07/27/11 Archive Date: 08/02/11 DOCKET NO. 10-36 215A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office Education Center in Buffalo, New York THE ISSUE Entitlement to additional VA educational assistance benefits under 38 U.S.C.A. Chapter 33 Post-9/11 GI Bill. ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran had active service from May 1984 to November 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 administrative decision regarding entitlement to education benefits from the Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The record contains a VA Form 22-1990 signed by the Veteran acknowledging that she was making an irrevocable election for education benefits under the Post-9/11 GI Bill in lieu of benefits under the 38 U.S.C.A. Chapter 30 Montgomery GI Bill (MGIB). 2. A July 2009 VA letter advised the Veteran that she had 10 months and 16 days of eligibility under the Post-9/11 GI Bill. 3. A September 2009 letter advised the Veteran that she had previously used 35 months and 5 days of educational benefits under the MGIB, and had only 25 days of eligibility under the Post-9/11 GI Bill. CONCLUSION OF LAW The requirements for payment of additional educational benefits under 38 U.S.C.A. Chapter 33 Post-9/11 GI Bill have not been met. 38 U.S.C.A. §§ 3301-24 (West Supp 2010); 38 C.F.R. §§ 38 C.F.R. §§ 21.9500-21.9770 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION In this case, the Veteran was receiving benefits under the MGIB. In May 2009, she applied for the Post-9/11 GI Bill, requesting an effective date of August 1, 2009. She argues that before she submitted her application, she contacted a representative at the VA to inquire about the Post-9/11 GI Bill. She states that she was informed that her benefits under the MGIB would be depleted and that she could go ahead and apply for the new GI Bill and receive an additional 12 months. She was informed by the RO in a July 2009 letter that she had 10 months and 16 days of benefits left. In August 2009 she submitted a notice of disagreement, requesting the full 12 months. In a September 2009 letter she was informed that she had already used 35 months and 5 days of educational benefits under the MGIB, and had only 25 days of benefits remaining to use under the Post-9/11 GI Bill. The Veteran contends that she should be granted the additional 12 months under the Post-9/11 GI Bill based on the initial information that she was given from the representative. An individual may establish eligibility for educational assistance under 38 U.S.C. Chapter 33 based on active duty service after September 10, 2001, if he or she- (a) Serves a minimum of 90 aggregate days excluding entry level and skill training (to determine when entry level and skill training may be included in the total creditable length of service, see § 21.9640(a)) and, after completion of such service,- (1) Continues on active duty; (2) Is discharged from service with an honorable discharge; (3) Is released from service characterized as honorable and placed on the retired list, temporary disability retired list, or transferred to the Fleet Reserve or the Fleet Marine Corps Reserve; (4) Is released from service characterized as honorable for further service in a reserve component; or (5) Is discharged or released from service for- (i) A medical condition that preexisted such service and is not determined to be service-connected; (ii) Hardship, as determined by the Secretary of the military department concerned; or (iii) A physical or mental condition that interfered with the individual's performance of duty but was not characterized as a disability and did not result from the individual's own misconduct; (b) Serves a minimum of 30 continuous days and, after completion of such service, is discharged under other than dishonorable conditions due to a service-connected disability; or (c)(1) After meeting the minimum service requirements in paragraph (a) or (b) of this section- (i) An individual 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; (ii) A member of the Armed Forces who is eligible for educational assistance under 38 U.S.C. Chapter 30 and who is making contributions towards such educational assistance under 38 U.S.C. 3011(b) or 3012(c) makes an irrevocable election to receive benefits under 38 U.S.C. Chapter 33; or (iii) A member of the Armed Forces who made an election not to receive educational assistance under 38 U.S.C. Chapter 30 in accordance with 38 U.S.C. 3011(c)(1) or 3012(d)(1) makes an irrevocable election to receive benefits under 38 U.S.C. Chapter 33. (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 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."). An individual who, as of August 1, 2009, has used entitlement under 38 U.S.C. Chapter 30 (MGIB), but retains unused entitlement under that chapter, makes an irrevocable election to receive educational assistance under the provisions of 38 U.S.C. Chapter 33 (Post-9/11 GI Bill) instead of educational assistance under the provisions of Chapter 30, will be limited to one month (or partial month) of entitlement under Chapter 33 for each month (or partial month) of unused entitlement under Chapter 30 (including any months of Chapter 30 entitlement previously transferred to a dependent that the individual has revoked). 38 C.F.R. § 21.9550(b)(1) (2010). The evidence in this case shows that a VA Form 22-1990, application for VA education benefits, was received from the Veteran in May 2009. In this form, the Veteran elected to receive Post-9/11 GI Bill benefits and relinquish her MGIB benefits, effective August 1, 2009. The form also included acknowledgements that the Veteran's entitlement under Chapter 33 would be limited to the number of months of entitlement remaining under Chapter 30 on the effective date of election and that an election of Post-9/11 GI Bill benefits was irrevocable and may not be changed. The form also stated that if entitlement under Chapter 30 was completely exhausted before the effective date of the Chapter 33 election, then up to an additional 12 months of benefits could be received under Chapter 33. The Board has carefully reviewed the VA Form 22-1990 filed by the Veteran, in which she clearly acknowledged that an election for benefits under the Post-9/11 GI Bill was irrevocable. At the Veteran's request, entitlement was converted from the MGIB to the Post-9/11 GI Bill. At the time of the Veteran's request, she was still enrolled under the MGIB. Based on the Veteran's election, the law dictates that the entitlement under the Post-9/11 GI Bill may not exceed her remaining MGIB entitlement as of August 1, 2009, which in this case is 25 days. While the Veteran was informed by the July 9, 2009 letter that she had 10 months and 16 days of entitlement left, it appears that the Veteran's MGIB benefits then being used for training from January 23, 2008 to July 22, 2009 had not yet been subtracted. According to the records, that training accounted for approximately 9.7 months of MGIB benefit usage. Once that usage was applied to her balance, she was advised in a September 2009 letter that she had 25 days of eligibility left. The Veteran does not contend that she had exhausted her eligibility to MGIB benefits prior to the effective date of her election. Rather, she contends that because she was erroneously advised, prior to her application submitted in May 2009, that her MGIB eligibility would be depleted, she should be entitled to the additional 12 months as stated on the application form. However, the Veteran had not depleted her MGIB entitlement by August 1, 2009. Unfortunately, she had 25 days of remaining entitlement. Thus, her benefits under the Post-9/11 GI Bill were limited to the remaining MGIB entitlement, and she was not entitled to the additional 12 months. The Board acknowledges the Veteran's argument that prior to submitting her application, she contacted a "representative at the VA" who pulled her file and told her that her MGIB eligibility would be depleted and that she would receive an additional 12 months under the new GI Bill. Assuming, arguendo, that the Veteran spoke with a VA employee rather than a service organization representative, the Board regrets that the Veteran was misinformed as to her potential eligibility. However, the Board is bound by the applicable law and regulations when determining entitlement to VA benefits. Unfortunately, there is no provision for benefits based on the appellant's arguments that she relied on the information originally supplied to her detriment. The law is clear in this case, and the claim for additional educational assistance must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). In denying this claim, the Board acknowledges the unfortunate circumstances of the appellant's case. The Board notes that the appellant's arguments essentially constitute a theory of entitlement to equitable relief. Although the Board denies her claim as a matter of law, the Board is sympathetic to her claim. The Board, however, is without authority to grant it on an equitable basis and instead is constrained to follow the specific provisions of the law. See 38 U.S.C.A. § 7104 (West 2002); Taylor v. West, 11 Vet. App. 436, 440-441 (1998); Harvey v. Brown, 6 Vet. App. 416,425 (1994). The Secretary of VA, however, has discretionary equitable power to provide relief, and the appellant is free to apply to the Secretary of VA and request that he exercise his discretionary authority to grant her claim on an equitable basis. See 38 U.S.C.A. § 503 (West 2002); see also Darrow v. Derwinski, 2 Vet. App. 303, 304-306 (1992). As a final matter, 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). Although the appellant has not received notification of VA's duties to notify and assist, the Court has held that VCAA notification procedures do not apply in cases where the applicable chapter of Title 38, United States Code contains its own notice provisions. See Barger v. Principi, 16 Vet. App. 132, 138 (2002) (VCAA notice was not required in case involving a waiver request). In the present case, specific VCAA notice was not required because the applicable regulatory notification procedure was contained in 38 C.F.R. § 21.1031 (2010) for claims, not the VCAA. See 38 C.F.R. § 21.9510 (specifically applying the provisions of subpart B and 38 C.F.R. § 21.1031 to claims for educational assistance under Chapter 33). In addition, the Veteran has been notified of the reasons for the denial of the claim, and has been afforded the opportunity to present evidence and argument with respect to the claim. Moreover, because the application of the law to the undisputed facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is necessary. See Mason v. Principi, 16 Vet. App. 129 (2002). ORDER Entitlement to additional VA educational assistance benefits under 38 U.S.C.A. Chapter 33 Post-9/11 GI Bill is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs