Citation Nr: 1301391 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 10-36 409A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to educational assistance benefits under the provisions of Chapter 30, Title 38, United States Code (Montgomery GI Bill). ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran served on active duty from January 1985 to May 1985, and from November 1998 to February 2002. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 2010 administrative decision by the Department of Veterans Affairs (VA) Atlanta, Georgia, Regional Office (RO), which determined that the appellant was not eligible for VA educational assistance benefits under Chapter 30, Title 38, United States Code, based upon the fact that he made an irrevocable election to receive Post-9/11 GI Bill benefits instead. FINDINGS OF FACT 1. In April 2010 the Veteran submitted a claim for benefits via VA Form 22-1990. 2. In a written statement received in July 2010 the Veteran clarified that he was relinquishing benefits under the Montgomery GI Bill to receive benefits under the Post-9/11 GI Bill. 3. In March 2011 the RO awarded educational benefits under the Post-9/11 GI Bill. 4. The Veteran's completion of VA Form 22-1990 on April 2, 2010, when coupled with his clarification statement received in July 2010, was an irrevocable election to receive Post-9/11 GI Bill benefits. CONCLUSION OF LAW An election to receive Chapter 33 education benefits and relinquishing eligibility for Chapter 30 education benefits may not be revoked. 38 C.F.R. § 21.9520(c)(2) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance There is no legal basis upon which the claim for VA educational assistance benefits under the MGIB may be awarded. Sabonis v. Brown, 6 Vet. App. 426 (1994). The provisions of VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). Analysis In April 2010 the Veteran submitted a claim for educational benefits via VA Form 22-1990. On that form, the Veteran selected both Chapter 33 Post-9/11 GI Bill benefits and Chapter 30 Montgomery GI Bill benefits. He also checked the box indicating that he was electing to receive Chapter 33 benefits in lieu of Chapter 30 benefits and that he understood that such election was irrevocable and may not be changed. Because the Veteran had selected both Chapter 33 and Chapter 30 benefits, the RO sent him a letter in April 2010 requesting that he clarify his intensions. In a written reply received in July 2010 the Veteran clarified that he was relinquishing benefits under the Montgomery GI Bill to receive benefits under the Post-9/11 GI Bill. In March 2011 the RO awarded educational benefits under the Post-9/11 GI Bill. 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, VA promulgated 38 C.F.R. § 21.9520 which sets forth eligibility requirements for Chapter 33 benefits. The regulation states that an individual may make an irrevocable election to receive benefits under this chapter by properly completing VA Form 22-1990. See 38 C.F.R. § 21.9520(c) (2). The irrevocability criteria of 38 C.F.R. § 21.9520(c)(2) have been met as the record contains a properly completed VA Form 22-1990 from the Veteran, which, when coupled with his clarifying statement received in July 2010, clearly indicated an irrevocable election to receive Post-9/11 GI Bill benefits. As such are contained in the claims file, it is not necessary to further discuss the Veteran's entitlement to educational assistance benefits under the provisions of Chapter 30, as he irrevocably elected to receive benefits under Chapter 33. The Veteran maintains that he received poor advice from a VA education counselor on which benefit to select and that in fact he would receive a greater benefit under the Montgomery GI Bill. Assuming that the Veteran received poor advice from a VA employee, the Board regrets that the Veteran was misinformed as to the desirability of his various options. However, the Board is bound by the applicable law and regulations when determining entitlement to VA benefits. Such matters as the Veteran contends 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). Therefore, the Board must find that the Veteran made an irrevocable election for educational benefits under the Post-9/11 GI Bill program in lieu of benefits under the MGIB. ORDER Entitlement to educational assistance benefits under Chapter 30, Title 38, United States Code (the Montgomery GI Bill) is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs