Citation Nr: 1301387 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 10-36 339 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether a valid irrevocable election of Department of Veterans Affairs (VA) educational benefits under Chapter 33, Tile 38, United States Code (Post-9/11 GI Bill) was properly submitted. 2. Entitlement to educational benefits in excess of 18 days under the Post-9/11 GI Bill. ATTORNEY FOR THE BOARD Terrence T. Griffin, Counsel INTRODUCTION The Veteran had active service from October 1998 to March 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Educational Office of the Muskogee, Oklahoma, Regional Office (RO). The May 2010 decision granted eligibility for 18 days of education benefits under the Post-9/11 GI Bill and the Veteran appealed this determination. The grant of benefits under the Post-9/11 GI Bill required the RO to find that a valid irrevocable election relinquishing eligibility under Chapter 30, Tile 38, United States Code (Montgomery GI Bill) was submitted by the Veteran. The Board must first address whether such an irrevocable election was submitted before addressing the Veteran's entitlement to education benefits under the Post-9/11 GI Bill, and has included the matter on the title page. The Veteran requested a Board hearing in connection this appeal and such hearing was scheduled. The hearing request is deemed withdrawn because she failed to report for this hearing and no request for postponement has been received. See 38 C.F.R. §§ 20.703, 20.704 (2012). FINDINGS OF FACT 1. The Veteran did not properly complete the VA Form 22-1990 or otherwise submit a statement electing to irrevocably relinquish her remaining benefits under the Montgomery GI Bill in-lieu of Post-9/11 GI Bill benefits. 2. There has been no irrevocable election to receive Post-9/11 GI Bill education benefits and any question of available benefits under the program is moot; there is no remaining case or controversy in the matter. CONCLUSIONS OF LAW 1. The criteria for a valid irrevocable election of Post-9/11 GI Bill education benefits in-lieu of Montgomery GI Bill education benefits are not met. 38 U.S.C.A. §§ 3301-24, 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326, 21.9550 (2012). 2. The appeal seeking entitlement to additional education benefits under the Post-9/11 GI Bill must be dismissed as moot. 38 U.S.C.A. §§ 7104, 7105 (West 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Irrevocable election After a Veteran has applied for basic educational assistance benefits under the provisions of the Post-9/11 GI Bill and met the minimum service requirements, he or she may make an irrevocable election to receive benefits under Post-9/11 GI Bill by relinquishing eligibility under the Montgomery GI Bill. See 38 C.F.R. § 21.9520(c)(1). To make a proper irrevocable election to receive benefits under Chapter 33 the Veteran must (A) properly complete a VA Form 22-1990; (B) submit a transfer-of-entitlement designation under this chapter to the Department of Defense; or (C) submit a written statement that includes identifying information, an election to receive benefits under Chapter 33 in lieu of benefits under Chapter 30, the desired date for the election to become effective and an acknowledgement that the election is irrevocable. See 38 C.F.R. § 21.9520(c)(2). An electronic VA Form 22-1990 is of record. Portions of the form are complete and others are blank, including the space allotted for the Veteran to sign and date the application. In the "REMARKS" section of the form, the Veteran conveyed that she sought to receive benefits under the Post-9/11 GI Bill after her Montgomery GI Bill benefits were exhausted, and approximated this to be in September 2010. The VA Form 22-1990 of record has not been properly completed and is not properly deemed an election by the Veteran to relinquish her eligibility for Montgomery GI Bill benefits in favor of Post-9/11 GI Bill benefits. See 38 C.F.R. § 21.9520(c)(2). VA provided this form to the Veteran and there is no indication that she signed the application, electronically or otherwise, which is essential to properly complete the form. See, e.g., Jernigan v. Shinseki, 25 Vet. App. 220, 224-25 (2012) (affirming that the Veteran's signature is an essential requirement for an effective application or filing, when the form is prescribed by the VA). A close reading of the form reflects the Veteran's clear intent to obtain Post-9/11 GI Bill education benefits after her Montgomery GI Bill benefits were exhausted and not any intent to elect one benefit in-lieu of the other. See 38 C.F.R. § 21.9520(c)(2)(ii). Although incorrectly estimating the date Montgomery GI Bill benefits would be exhausted, the Veteran's statements in context only reflect her lay approximation of the date she would be eligible for Post-9/11 GI Bill benefits. It is the RO's obligation to determine when her Montgomery GI Bill benefits would be exhausted and inform her of when she would be eligible for Post-9/11 GI Bill benefits, which is consistent with her clear intention. There is also no evidence of record that the Veteran submitted a transfer-of-entitlement designation under the Post-9/11 GI Bill to the Department of Defense. See 38 C.F.R. § 21.9520(c)(2). In sum, the Veteran did not properly complete the VA Form 22-1990 or otherwise submit a statement electing to irrevocably relinquish her remaining benefits under the Montgomery GI Bill in-lieu of Post-9/11 GI Bill benefits. Thus, no valid irrevocable election of Post-9/11 GI Bill benefits has been made. Entitlement to education benefits under the Post-9/11 GI Bill The Veteran has not irrevocably elected education benefits under the Post-9/11 GI Bill and any question of the time she has under this bill is moot. The appeal must be dismissed. See 38 U.S.C.A. §§ 7104(a), 7105(d)(5). As a result of this decision, the Veteran remains entitled to benefits under the Montgomery GI Bill, which appears to be approximately 18 days. When those are exhausted, she will then be eligible to apply for benefits under the Post-9/11 GI Bill, which appears to be approximately one year. ORDER A valid irrevocable election of Post-9/11 GI Bill educational benefits has not been submitted; to this extent, the appeal is granted. The appeal seeking entitlement to additional education benefits under the Post-9/11 GI Bill is dismissed. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs