Citation Nr: 1120321 Decision Date: 05/25/11 Archive Date: 06/06/11 DOCKET NO. 09-43 525 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to eligibility for education benefits under the provisions of Chapter 30, Title 38, United States Code (Montgomery GI Bill). REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from May 20, 1996 to May 30, 1997. This matter comes before the Board of Veterans' Appeals (Board) from a November 2008 decision of the Department of Veterans' Affairs (VA) Regional Office (RO) Education Center in Muskogee, Oklahoma. In that decision, the RO denied entitlement to eligibility for Chapter 30 education benefits. FINDINGS OF FACT 1. The Veteran served on active duty from May 20, 1996 to May 30, 1997. 2. The Veteran's delimiting period for receiving Chapter 30 education benefits expired on May 31, 2007. 3. The Veteran's request for Chapter 30 education benefits was received on October 27, 2008, more than one year after the expiration of his 10-year period of eligibility, and he did not submit a timely request to extend the period of eligibility. CONCLUSION OF LAW The criteria for eligibility for Chapter 30 education benefits have not been met. 38 U.S.C.A. §§ 3011, 3031 (West 2002); 38 C.F.R. §§ 21.1033, 21.7042, 21.7050, 21.7051, 21.7135(s) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). There are certain instances where the VCAA does not apply because the issue presented is solely one of statutory interpretation and/or the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 230 (2000) (claim that a Federal statute provides for payment of interest on past-due benefits), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). This is indeed the situation in this case. The facts are not in dispute; instead, resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to eligibility for education benefits. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002); see also VAOPGCPREC 5-2004 (June 23, 2004). Analysis An individual may establish eligibility for basic educational assistance under Chapter 30 by satisfying certain service prerequisites. Under 38 U.S.C.A. § 3011(a)(1)(A) and 38 C.F.R. § 21.7042(a)(1), an individual may establish eligibility by showing that he first entered on active duty as a member of the armed forces after June 30, 1985. The individual also must demonstrate that he served at least three years of continuous active duty, or at least two years if the individual's initial obligated period of active duty was less than three years. 38 U.S.C.A. § 3011(a)(1)(A)(1); 38 C.F.R. § 21.7042(a)(2). Significantly, the governing legal criteria specify that in order to be eligible to receive educational benefits pursuant to Chapter 30, an individual, after June 30, 1985, must continue on active duty in the Armed Forces for at least three years, unless discharged or released for a qualifying reason (i.e. a service-connected disability, a medical condition which preexisted service, hardship, the convenience of the Government if the individual completed not less than 30 months continuous active duty after that date, involuntarily for the convenience of the Government as a result of a reduction in force, or for a physical or mental condition not characterized as a disability and not the result of his own willful misconduct). 38 U.S.C.A. § 3011(a); 38 C.F.R. § 21.7042(a)(5). As applicable to this case, the general rule with regard to Chapter 30 education assistance benefits is that VA will not provide basic educational assistance or supplemental educational assistance to a veteran beyond 10 years from the date of the veteran's last discharge or release from a period of active duty of 90 days or more of continuous service. 38 U.S.C.A. § 3031(a); 38 C.F.R. § 21.7050(a). Exceptions to this rule provide that the 10-year period can be extended if (1) the individual was initially prevented from establishing eligibility for educational assistance due to the character of his discharge, but was later able to establish eligibility as a result of a change, correction, modification, or other corrective action by competent military authority, (2) the individual was captured and held as a prisoner of war by a foreign government or power after his last discharge or release from active duty, (3) the individual was prevented from pursuing his chosen program of education before the expiration of the 10-year period because of a physical or mental disability not the result of his own willful misconduct, (4) the individual was enrolled in an educational institution regularly operated on the quarter or semester system and the period of entitlement under 38 U.S.C.A. § 3013 expired during a quarter or semester, or (5) the individual was enrolled in an educational institution not regularly operated on the quarter or semester system and the period of entitlement under 38 U.S.C.A. § 3013 expired after a major portion of a course was completed. 38 U.S.C.A. § 3031(b), (c), (d), and (f); 38 C.F.R. §§ 21.7050(f), (g), 21.7051(a), 21.7135(s). VA must receive a claim for an extended period of eligibility by the later of the following dates: (1) one year from the date on which a veteran's original period of eligibility ended, or (2) one year from the date on which a veteran's physical or mental disability no longer prevented him from beginning or resuming a chosen program of education. 38 C.F.R. § 21.1033(c). VA may extend for good cause a time limit within which a claimant is required to act to perfect a claim or challenge an adverse VA decision. VA may grant such an extension only when the following conditions are met: (1) when a claimant requests an extension after expiration of a time limit, he must take the required action concurrently with or before the filing of that request; and (2) the claimant must show good cause as to why he could not take the required action during the original time period and could not have taken the required action sooner. 38 C.F.R. § 20.1033(e)(1). The Veteran's only verified period of active duty was from May 20, 1996 to May 30, 1997. Ten years from the date of his discharge from active duty was May 31, 2007. Therefore, the Veteran's delimiting date is May 31, 2007 and he became ineligible for VA educational assistance after that date. The Veteran's claim for Chapter 30 education benefits was received by the RO on October 27, 2008. As he was not eligible for VA education benefits after May 31 2007 and his claim for benefits was received after that date, he is not entitled to Chapter 30 education benefits regardless of whether any other prerequisites for such benefits have been met. Furthermore, the Veteran has not reported and the evidence does not reflect that he submitted any request to extend his delimiting date beyond May 31, 2007 for any of the reasons previously listed. To the extent that the Veteran's October 2008 claim may be considered a request to extend his delimiting date, as explained above his original period of eligibility for Chapter 30 education benefits ended on May 31, 2007. The Veteran has not reported and there is no evidence of any physical or mental disability that prevented him from beginning or resuming a chosen program of education. Thus, the latest date on which he could have submitted a request to extend his eligibility for such benefits was May 31, 2008. See 38 C.F.R. § 21.1033(c). As the Veteran's claim was not received by the RO until October 27, 2008, it does not qualify as a timely request for an extension within one year of the end of his period of eligibility. See Id. In his February 2009 notice of disagreement and November 2009 substantive appeal (VA Form 9), the Veteran contended that he had submitted a claim for Chapter 30 education benefits prior to the delimiting date in the summer of 2000 and that his claim was denied. However, as noted by the RO, there is no evidence in either the Veteran's education folder or claims file that any prior claim for education benefits was received by the RO other than the October 2008 claim. The Veteran has offered no further explanation as to why he did not submit a claim for education benefits prior to the delimiting date or a timely request to extend the delimiting date. Thus, the evidence of record does not demonstrate good cause for why the Veteran failed to file a timely claim for Chapter 30 education benefits or a request for an extension of his delimiting date. See 38 C.F.R. § 21.1033(e)(1). The legal criteria in this case are clear and the pertinent facts are not in dispute. The Veteran did not submit a timely claim for VA education benefits prior to his delimiting date of May 31, 2007 or a timely request to extend the delimiting date. Unfortunately, the Board has no authority to create exceptions, or to overturn or to disregard this very specific limitation on the award of Chapter 30 education benefits. 38 U.S.C.A. § 7104(a) (West 2002); see Harvey, 6 Vet. App. at 423 (payments of money from the Federal Treasury are limited to those authorized by statute). In Harvey, the United States Court of Appeals for Veterans Claims pointed out that it is a federal crime, punishable by fine and imprisonment, for any Government officer or employee to knowingly spend money in excess of that appropriated by Congress. Id. at 424, citing OPM v. Richmond, 496 U.S. 414, 430, 110 S.Ct. 2465, 2474 (1990). Where, as here, the law and not the evidence is dispositive, the Veteran's claim for education benefits under the provisions of Chapter 30 must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to eligibility for Chapter 30 education benefits is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs