Citation Nr: 1300622	
Decision Date: 01/08/13    Archive Date: 01/16/13

DOCKET NO.  10-46 534	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Whether an election for Post-9/11 GI Bill (Chapter 33, Title 38, United States Code) benefits is revocable and can be rescinded.  


WITNESSES AT HEARING ON APPEAL

The Veteran and O.N.


ATTORNEY FOR THE BOARD

B. R. Mullins, Associate Counsel






INTRODUCTION

The Veteran had active service from January 2001 to April 2005.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA)  Regional Office (RO) in Muskogee, Oklahoma.  

In August 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in Oakland, California.  A written transcript of this hearing has been prepared and incorporated into the evidence of record.  


FINDING OF FACT

Om February 2010, the Veteran filed an application for education 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 criteria for an irrevocable election for education benefits under the Post-9/11 GI Bill program in lieu of benefits under the MGIB program have been met, and the irrevocable election for Post-9/11 GI Bill benefits cannot be rescinded.  38 U.S.C.A. §§ 3301-24 (West Supp. 2012); 38 C.F.R. § 21.9520 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

At the outset of this discussion, 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) 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, 42 (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 facts.  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.  

In the present appeal, the Veteran asserts that she was informed by someone from the VA Education Benefits Line that her Chapter 30 GI Bill (MGIB) ended in February 2010.  As such, she filed an application for educational benefits under the Post-9/11 GI Bill program (Chapter 33) via a VA Form 22-1990, which was received by VA in February 2010, and selected an election date of March 1, 2010.  The Veteran confirmed her election date to be March 1, 2010 in a May 2010 correspondence.  The Veteran was subsequently awarded education benefits under the Post-9/11 GI Bill at the 100 percent level in May 2010 as of March 1, 2010.  The Veteran notified VA in June 2010 that the number of months of entitlement were incorrect due to misinformation from a VA employee, as well as an error of a VA representative at her school that signed her up for the wrong number of credits, enrolling her as a full-time student rather than as a part-time student.  

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 already noted, 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).  A review of the claims file reflects that the Veteran did in fact complete said form.  Item 9F under Information and Instructions for completing the VA Form-22 1990 indicates that if a veteran elects chapter 33 benefits in lieu of chapter 30, the months of entitlement under chapter 33 will be limited to the number of months of entitlement remaining under chapter 30 on the effective date of election.  See http://www.vba.va.gov/pubs/forms/VBA-22-1990-ARE.pdf.  It was also noted that an election to give up benefits under an existing program to receive benefits under the Post-9/11 GI Bill is irrevocable and a veteran should carefully consider this decision before completing this section.  Id.  The Veteran does not contest that she applied for and was granted benefits under the Post-9/11 GI Bill, but instead has based her appeal on having been provided misinformation.  

While the Veteran has argued that errors were performed by her school and that she was misinformed by VA, it has been held by the Courts that such matters are no exception to VA regulations.  See Morris v. Derwinski, 1 Vet. App. 260 (1991), citing Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-85 (1947) (noting that the United States Supreme Court has recognized that persons dealing with the United States Government are charged with knowledge of federal statutes and lawfully promulgated agency regulations, regardless of actual knowledge or hardship resulting from innocent ignorance).  Furthermore, "[e]rroneous advice given by a government employee cannot be used to estop the government from denying benefits."  McTighe v. Brown, 7 Vet. App. 29, 30 (1994) (citing OPM v. Richmond, 496 U.S. 414 (1990)).  Therefore, while the Board is sympathetic to the Veteran's situation, the law is dispositive in this case.  

Thus, the Board finds that the irrevocability requirements set forth under 38 U.S.C.A. § 21.9520(c)(2) have been met and that the Veteran did make an irrevocable election for educational benefits under the Post-9/11 GI Bill program when she completed the VA Form 21-1990.  As such, her election of Post-9/11 GI Bill benefits is irrevocable and cannot be rescinded.  



ORDER

The Veteran's election for Post-9/11 GI Bill benefits as of March 1, 2010, is irrevocable and her appeal for a rescission of these benefits is denied.  



____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs