Citation Nr: 1301758 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 10-34 307 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Basic eligibility to receive a transfer of educational benefits under Chapter 33, United States Code. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Appellant is son of the Veteran who had active duty in the United States Army from August 1979 to August 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 decision at the Education Office of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied basic eligibility to receive a transfer of educational benefits under Chapter 33, United States Code. Jurisdiction of the claims folder is with the Houston RO. In February 2011, the Appellant offered testimony at a Travel Board hearing before the undersigned Veterans Law Judge at the San Antonio RO. A transcript of the hearing is in the claims file. FINDING OF FACT The service department is not shown to have approved a request by the Veteran for a transfer of educational benefits. CONCLUSION OF LAW The criteria for basic eligibility to receive a transfer of educational benefits under Chapter 33, United States Code, have not been met. 38 U.S.C.A. §§ 3301, 3311, 3313 (West Supp. 2012); 38 C.F.R. §§ 21.9550, 21.9570 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant asserts that he is entitled to a transfer of educational benefits under Chapter 33, United States Code, from the Veteran. He argues, in essence, that the process for applying for the transfer of benefits was confusing and unnecessarily complicated. The Veteran, through multiple written statements to VA, has voiced his complete support for his son's application. The Post-9/11 GI Bill was enacted by Congress in June 2008. See Pub. L. No. 110-252, Title V, §§ 5001-5003, 122 Stat. 2357 (2008). The statutory provisions are codified at Title 38 U.S.C.A Chapter 33. VA promulgated new regulations to implement the change in law in March 2009 and the regulations are currently codified at 38 C.F.R. §§ 21.9500-21.9770 (2012). Under these provisions, an eligible individual is entitled to a maximum of 36 months of educational assistance under Chapter 33 and can transfer up to the full 36 months of his or her entitlement to a dependent. 38 C.F.R. §§ 21.9550, 21.9570. A transferor may not transfer an amount of entitlement that is greater than the entitlement he or she has available at the time of transfer. 38 C.F.R. § 21.9570. Chapter 33 provisions pertaining to transfer of benefits includes the following: Subject to the provisions of this section, the Secretary concerned may permit an individual described in subsection (b) who is entitled to educational assistance under this chapter to elect to transfer to one or more of the dependents specified in subsection (c) a portion of such individual's entitlement to such assistance, subject to the limitation under subsection dependents specified in subsection (c) a portion of such individual's entitlement to such assistance, subject to the limitation under subsection (d). (2) The purpose of the authority in paragraph (1) is to promote recruitment and retention in the uniformed services. The Secretary concerned may exercise the authority for that purpose when authorized by the Secretary of Defense in the national security interests of the United States. (b) Eligible individuals.--An individual referred to in subsection (a) is any member of the uniformed services who, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, has completed at least-- (1) six years of service in the armed forces and enters into an agreement to serve at least four more years as a member of the uniformed services; or (2) the years of service as determined in regulations pursuant to subsection (j).,... 38 USCA § 3319 (West Supp. 2011). The Appellant filed VA Form 22-1990E, Application for Family Members to Use Transferred Benefits, in November 2009. He indicated that he was seeking to use Chapter 33 Post 9/11 GI Bill benefits for his college education that he was currently undertaking. His father sent an accompanying statement indicating that he wanted his Post 9/11 GI Bill benefits transferred to the Appellant. The November 2009 decision denying the claim shows that the Muskogee RO stated that it denied the appellant's claim because, "the Army has not indicated that your parent has been approved for the transferability program. (TEB)" He was told that service members must be approved through the TEB website before the VA can issue a certificate of eligibility. In reaching the decision, the RO used the Department of Defense (DoD) records. He was referred to the VA's website (which in turn links to the DoD website) for information about transfer of these benefits, and told to complete another VA claim for online once his parent has received authorization of transfer. Appellant filed the VA electronic application. In February 2010, the RO stated that, as in November 2009, they were again unable to pay him educational benefits. In March 2010, the Appellant submitted a notice of disagreement and the Veteran submitted a statement in support of his son's claim. The Veteran stated that he tried very hard to get information on how to apply for the GI Bill and transfer benefits to his son, but, since the program was so new, he could get very little information. He could not get much guidance. He found the program confusing and ambiguous, particularly with regard to timelines. In April 2010, the Veteran submitted a statement indicating that he was requesting TEB for his son for the period from August 1, 2009, to April 29, 2010. In June 2010, the DoD reported to VA in response to a VA request regarding transferability that their records did not show the Veteran's name in the transferability database. In the June 2010 statement of the case, the RO continued the denial, explaining that DoD records did not reflect that the Veteran was eligible to transfer Post 9/11 GI Bill entitlement to a dependent. Because of this, VA denied claimant's request for benefits under the Post 9/11 GI Bill transfer of entitlement provision. Based on DoD records, the denial of benefits was correct. VA cannot change a DoD decision. The evidence includes "Veterans Information Solution" printouts, dated in November 2009, March 2010 and June 2010, all of which state "No Transfer of Entitlement Information." A FET Master Record for the appellant, dated in November 2009, notes "Certificate of Eligibility: N" (indicating "no" or "none"). It further states, "No entitlement data found," and "No award periods found." At his hearing before the undersigned, Appellant argues that the process to get the benefits transferred from his father was confusing. When asked by his representative whether he contacted the TEB-related website run by DoD and referenced by VA in the denial letter, he responded that he believed so. He did not provide any further details as to any outcome of such contact. He added that he and his father felt that it was unfair that Appellant could not use what was left of his father's education benefit. He was going to graduate in December and would like help with paying off his student loans. The Appellant has not submitted any evidence to show that the Veteran ever received approval of a transfer request for educational benefits on behalf of the Appellant from the service department. Nor has he shown that the Veteran ever requested a transfer of educational benefits on his behalf that met the criteria at 38 C.F.R. § 21.9570(d). 38 USCA § 3319 makes it clear that the decision as to transferability of Chapter 33 benefits rests with the service department and not VA. Consequently, the Appellant has not presented evidence in support of his claim. See 38 U.S.C.A. § 5107(a) (a claimant has the responsibility to present and support a claim for VA benefits); Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (the "support" requirement of section 5107(a) obligates the claimant to provide some evidentiary basis for his or her benefits claim); Jones v. Shinseki, 23 Vet. App. 382, 391 (2009) ("Notwithstanding the duty to assist, it remains the claimant's responsibility to submit evidence to support his claim"). In summary, the service department is not shown to have approved a request from the Veteran for a transfer of educational benefits to the Appellant. The service department's findings on such matters are conclusive and binding on VA. See e.g., Duro v. Derwinski, 2 Vet. App. 530 (1992); Dacoron v. Brown, 4 Vet. App. 115, 120 (1993). Thus, the Appellant's only recourse lies within the relevant service department, not VA. See e.g., Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). For the foregoing reasons, the Appellant is not eligible for a transfer of benefits under the Post-9/11 GI Bill. His claim for these benefits must therefore be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). To the extent that he argues that the Veteran's service was sufficient to qualify him to be eligible for VA education benefits, as he has not shown the threshold requirements of basic VA eligibility, DoD approval for transferability, these are issues which need not be discussed. As a final matter, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100 , 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)), imposes obligations on VA in terms of its duties to notify and assist claimants. For educational assistance claims, the regulations delineating the specific notification and assistance requirements are set forth in 38 C.F.R. §§ 21.1031, 21.1032. These provisions apply to the Post 9/11 GI Bill program. 38 C.F.R. § 21.9510 (2012). In this case, however, the essential facts are not in dispute; the case rests on the interpretation and application of the relevant law. The Veterans Claims Assistance Act of 2000 does not affect matters on appeal when the issue is limited to statutory interpretation. See Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also VAOPGCPREC 2-2004 (2004), 69 Fed. Reg. 25180 (2004) (holding that VCAA notice was not required where evidence could not establish entitlement to the benefit claimed). There is no possibility that any additional notice or development would aid the appellant in substantiating his claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); see Dela Cruz. Thus, any deficiency of notice or of the duty to assist constitutes merely harmless error. ORDER The appeal is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs