Citation Nr: 1111411 Decision Date: 03/22/11 Archive Date: 04/05/11 DOCKET NO. 10-36 326 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Whether the Veteran made an irrevocable election for education benefits under the Post-9/11-GI Bill program (Chapter 33) in lieu of benefits under the Montgomery GI Bill (MGIB) program (Chapter 30). REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Helena M. Walker, Associate Counsel INTRODUCTION The Veteran served on active duty from July 2001 to January 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 administrative decision regarding entitlement to education benefits from the Department of Veterans Affairs (VA) Regional Office (RO) Post-9/11 GIBILL processing center in Muskogee, Oklahoma. Jurisdiction of the Veteran's claims file was returned to the Oakland, California, RO. In February 2011, the Veteran appeared and testified at a Travel Board hearing at the Oakland RO. The transcript is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The record does not contain a statement from the Veteran acknowledging that he was making an irrevocable election for education benefits under the Post-9/11 GIBILL program in lieu of benefits under the MGIB program. CONCLUSION OF LAW The criteria for an irrevocable election for education benefits under the Post-9/11 GIBILL program in lieu of benefits under the MGIB program have not been met. 38 U.S.C.A. §§ 3301-24 (West Supp 2010); 38 C.F.R. § 21.9520 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION At the outset of this decision, the Board finds that the provisions of the Veterans Claims Assistance Act of 2000 (the VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.A. § 5100 to 5107 (West 2002)) are not applicable to this claim on appeal because the appeal turns on a matter of law and not on the underlying facts or development of the facts. See Manning v. Principi, 16 Vet. App. 534, 542 (2002). The United States Court of Appeals for Veterans Claims (Court) found in Manning that the VCAA can have no effect on appeals that are decided on an interpretation of the law as opposed to a determination based on fact. Also see 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 Veteran essentially contends that he was erroneously told that he would be eligible for an additional 12 months of Post-9/11 GIBILL benefits in addition to his remaining MGIB benefits. He contends that the VA benefits counselor at his school's campus told him erroneous information, and he said the VA/GIBILL website did not indicate that the Veteran's election of Post-9/11 GIBILL benefits would be irrevocable. It is the Veteran's contention that he would have been entitled to more education benefits had he exhausted his MGIB before electing the Post-9/11 GIBILL. On September 8, 2009, the Veteran elected for Post-9/11 GIBILL benefits, effective August 24, 2009. Subsequent to that, the Veteran was awarded 10 months and 27 days of Post-9/11 GIBILL benefits-this was the remaining amount of eligibility for his MGIB benefits. In a November 2009 award letter, VA indicated that the Veteran was entitled to Post-9/11 GIBILL benefits for schooling from August 2009 to December 2009, and following that disbursement, he had 7 months of Post-9/11 GIBILL benefits remaining. In denying the Veteran's request, the RO has determined that the Veteran's election of benefits under the Post 9/11 GIBILL was "irrevocable" regardless of circumstances. The Board, upon review of the record, finds that the Veteran raises a question of law of first impression. Pub.L. 110-252, Title V, § 5003(c), June 30, 2008, 122 Stat. 2375, generally provided that an election of Chapter 33 benefits constituted an irrevocable decision. In implementing this new law, however, VA promulgated 38 C.F.R. § 21.9520 which states as follows: 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."). Important for this decision, 38 C.F.R. § 21.9520(c)(2) specifies 4 specific criteria which must be met before an irrevocable election for education benefits under the Post 9/11 GI Bill have been met. Notably, the criteria under 38 C.F.R. § 21.9520(c)(2) uses the conjunctive phrase "and" which means that irrevocability does not occur unless all criteria have been met. See generally Melson v. Derwinski, 1 Vet. App. 334 (1991) (the use of the conjunctive "and' in a statutory provision means that all of the conditions listed in the provision must be met). In this case, the irrevocability criteria of 38 C.F.R. § 21.9520(c)(2) have not been met as the record does not contain a statement from the Veteran acknowledging that he was making an irrevocable election for education benefits under the Post-9/11 GIBILL program in lieu of benefits under the MGIB program. In particular, the Board has carefully reviewed the VA Form 22-1990 filed by the Veteran. This document does not contain any notice that an election for benefits under the Post-9/11 GIBILL program was irrevocable. Additionally, this document does not contain any acknowledgement on the part of the Veteran that he was aware of the irrevocability criteria. Quite simply, the regulation promulgated by VA requires an acknowledgement by the Veteran that his election for education benefits under the Post-9/11 GIBILL program was irrevocable before such election becomes irrevocable. The irrevocability requirements set forth under 38 C.F.R. § 21.9520(c)(2)(iv) have not been met. Therefore, the Board must find that the Veteran did not make an irrevocable election for education benefits under the Post-9/11 GIBILL program in lieu of benefits under the MGIB. The appeal is granted. ORDER The appeal is granted. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs