Citation Nr: 1128167 Decision Date: 07/28/11 Archive Date: 08/04/11 DOCKET NO. 10-36 027 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to benefits under 38 U.S.C.A. Chapter 33 (the Post-9/11 GI Bill). ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from May 2004 to June 2005. This matter comes before the Board of Veterans' Appeals (Board) from an August 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In that decision, the RO denied entitlement to benefits under the Post-9/11 GI Bill. Jurisdiction over this case was subsequently transferred to the VARO in Houston, Texas, and that office forwarded the appeal to the Board. In his August 2010 substantive appeal (VA Form 9), the Veteran requested a videoconference hearing before a Veterans Law Judge (VLJ) of the Board and one was scheduled for April 19, 2011. However, the Veteran failed to appear for the hearing and his request will therefore be considered withdrawn. See 38 C.F.R. § 20.704(e) (2010). FINDING OF FACT The Veteran entered his period of service with the loan repayment program (LRP) as part of the terms of his enlistment. CONCLUSION OF LAW The criteria for entitlement to benefits under the Post-9/11 GI Bill have not been met. 10 U.S.C.A. § 2171 (West 2002); 38 U.S.C.A. Chapter 33 (West Supp. 2010); 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 21.1031, 21.1032, 21.9510, 21.9520, 21.9550 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION 38 C.F.R. § 21.9510 provides that the provisions of subpart B of 38 C.F.R. Part 21, applicable to vocational rehabilitation and education, apply to claims filed for educational assistance under 38 U.S.C.A. Chapter 33 with respect to VA's responsibilities upon receipt of claim, VA's duty to assist claimants in in obtaining evidence, and time limits. The provisions of subpart B contain notification and assistance requirements regarding education claims. The notification requirements do not apply when a claim cannot be substantiated because there is no legal basis for the claim or undisputed facts render the claimant ineligible for the claimed benefits. 38 C.F.R. § 21.1031(b)(1). The assistance requirements do not apply when there is no reasonable possibility than any assistance that VA would provide to the claimant would substantiate the claim. 38 C.F.R. § 21.1032(d). As shown below, the undisputed facts render the Veteran ineligible for benefits under the Post-9/11 GI Bill and there is no reasonable possibility than any assistance that VA would provide to the Veteran would substantiate his claim. Consequently, the notice and assistance requirements of subpart B of 38 C.F.R. Part 21 are inapplicable in this case. The Veteran applied for benefits pursuant to the Post-9/11 GI Bill. The Post-9/11 GI Bill was enacted by Congress in June 2008. See Pub. L. No. 110-252, Title V, §§ 5001-5003, 122 Stat. 2357 (2008). The statutory provisions are codified at Title 38 U.S.C.A. Chapter 33. VA promulgated new regulations to implement the change in law in March 2009 and the regulations are currently codified at 38 C.F.R. §§ 21.9500-21.9770. Under these provisions, an eligible individual is entitled to a maximum of 36 months of educational assistance. 38 C.F.R. §§ 21.9550(a). In order to be an eligible individual, a Veteran must meet the service requirements of 38 C.F.R. § 21.9520. However, 38 U.S.C.A. § 3322(b) provides that a period of service counted for purposes of repayment of an education loan under 10 U.S.C.A. Chapter 109 may not be counted as a period of service for entitlement to educational assistance under 38 U.S.C.A. Chapter 33. 10 U.S.C.A. Chapter 109 contains provisions relating to the education loan repayment program (LRP). See 38 U.S.C.A. § 2171. In his August 2010 substantive appeal (VA Form 9), the Veteran conceded that he entered his period of active service (from May 2004 to June 2005) with the LRP in his enlistment contract, but argued that he never used this benefit. Evidence from the Department of Defense also indicates that the Veteran's service from May 2004 to June 2005 counted toward his three year LRP obligation. The Board finds that the fact that the Veteran entered his period of enlistment with the LRP as part of his enlistment contract reflects that his period of service "counted for purposes of repayment of an education loan" under 10 U.S.C.A. Chapter 109. Based on the Veteran's own statement, his enlistment for this period of service was based in part on the LRP; consequently, the period of service was contingent upon LRP eligibility. Therefore, this period of service cannot be counted as a period of service for entitlement to educational assistance under the Post-9/11 GI Bill codified in 38 U.S.C.A. Chapter 33. Moreover, the Veteran indicated in his August 2010 substantive appeal that he needed more time to submit evidence showing that he did not use this benefit, but he has not done so in the nearly one year since that time. Consequently, the Veteran has not presented evidence in support of his claim. See 38 U.S.C.A. § 5107(a) ( a claimant has the responsibility to present and support a claim for VA benefits); Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (the "support" requirement of section 5107(a) obligates the claimant to provide some evidentiary basis for his or her benefits claim); Jones v. Shinseki, 23 Vet. App. 382, 391 (2009) ("Notwithstanding the duty to assist, it remains the claimant's responsibility to submit evidence to support his claim"). For the foregoing reasons, the Veteran is not eligible for benefits under the Post-9/11 GI Bill. His claim for these benefits must therefore be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to benefits under 38 U.S.C.A. Chapter 33 (the Post-9/11 GI Bill) is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs