Citation Nr: 1301927 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 10-27 564A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to basic eligibility for educational benefits under Chapters 30, 32 and 33, Title 38, United States Code, and Chapters 1606 and 1607 of Title 10, United States Code. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran had active service from September 1970 to June 1991. This matter is before the Board of Veterans' Appeals (Board) from a July 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claims. The documents in the VVA file are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. The Veteran had active military service from September 1970 to June 1991. 2. The Veteran's VA Form 22-1990, Application for VA Education Benefits, was received electronically by VA on May 18, 2009. 3. The Veteran did not first enter active duty as a member of the Armed Forces after June 30, 1985. 4. The Veteran did not enter active duty as a member of the Armed Forces after January 1, 1977. 5. The Veteran did not have any active duty service after September 10, 2001. 6. The record does not reflect that the Veteran had Selected Reserve or National Guard service. CONCLUSIONS OF LAW 1. The criteria for basic eligibility to VA educational assistance benefits under 38 U.S.C.A. Chapter 30 (Montgomery GI Bill), Chapter 32 (Post-Vietnam Era Veteran's Educational Assistance Program (VEAP)) and Chapter 33 (Post-9/11 GI Bill) have not been met. 38 U.S.C.A. §§ 3001 -3021, 3201-3243, 3301-3324 (West 2002 & Supp. 2012); 38 C.F.R. §§ 21.5040 , 21.5052, 21.7042, 21.7044, 21.7045, 21.9505, 21.9520 (2012). 2. The criteria for basic eligibility to VA educational assistance benefits under 10 U.S.C.A. Chapter 1606 (Montgomery GI Bill - Selected Reserve) and Chapter 1607 (Reserve Educational Assistance Program (REAP)) have not been met. 10 U.S.C.A. §§ 16131-16137, 16161-16166 (West 2002 & Supp. 2012); 38 C.F.R. §§ 21.7540, 21.9520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. There are certain situations, however, when the VCAA does not apply. The United States Court of Appeals for Veterans Claims (Court) has held that where the law, and not the underlying facts or development of the facts are dispositive in a case, the VCAA can have no effect on the appeal. See Manning v. Principi, 16 Vet. App. 534, 542 (2002). See also Smith v. Gober, 14 Vet. App. 227 (2002) (VCAA has no effect on appeal limited to interpretation of law); Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (VCAA not applicable where law, not factual evidence, is dispositive). Moreover, VA's General Counsel has held that the notice and duty to assist provisions of the VCAA are not applicable to a claim, as here, where it cannot be substantiated because there is no legal basis for it, or because the undisputed facts render the claimant ineligible for the claimed benefit. See VAOPGCPREC 5-2004 (June 23, 2004). The Board adds that general due process concerns have been satisfied in connection with this appeal. See 38 C.F.R. § 3.103. The Veteran has been accorded ample opportunity to present evidence and argument in support of his appeal. Therefore, further discussion of the VCAA is not required. See Bernard v. Brown, 4 Vet. App. 384, 392-394 (1993). Legal Criteria Chapter 30 - Montgomery GI Bill Chapter 30 of Title 38, U.S. Code sets forth provisions to allow for educational assistance for members of the Armed Forces after their separation from military service. See 38 U.S.C.A. §§ 3001 -3021. VA will pay Chapter 30 educational assistance to an eligible veteran while he is pursuing approved courses in a program of education. 38 C.F.R. § 21.7130. A threshold requirement for Chapter 30 educational assistance is the completion of certain requisite service. In order to be entitled to Chapter 30 educational assistance, an individual must first become a member of the Armed Forces or first enter active duty as a member of the Armed Forces after June 30, 1985, and in the case of an individual whose obligated period of active duty is three years or more, serve at least three continuous years of active duty. See 38 U.S.C.A. § 3011(a); 38 C.F.R. § 21.7042(a). Chapter 32- VEAP Chapter 32 of Title 38, U.S. Code sets forth provisions to allow for educational assistance for members of the Armed Forces after their separation from military service. See 38 U.S.C.A. §§ 3201-3243. A threshold requirement for Chapter 32 educational assistance is the completion of certain requisite service. In order to be entitled to Chapter 32 educational assistance, an individual must first become a member of the Armed Forces or first enter active duty as a member of the Armed Forces after January 1, 1977 and before July 1, 1985, but not be eligible under Chapter 34 of Title 38, U.S. Code, and must have served on at least 181 days of active duty or have been discharged from active duty for a service-connected disability. The individual must enroll in the educational benefits program during the period of active duty and participate for at least 12 consecutive months. A person electing to participate in the program shall agree to have a monthly deduction made from his or her military pay. See 38 U.S.C.A. §§ 3221(a), 3222(a); 38 C.F.R. §§ 21.5040(a), 20.5052(a). Chapter 33 - Post-9/11 GI Bill Chapter 33 of Title 38, U.S. Code sets forth provisions to allow for educational assistance for members of the Armed Forces after their separation from military service. See 38 U.S.C.A. §§ 3301-3324. A threshold requirement for Chapter 33 educational assistance is the completion of certain requisite service. In order to be entitled to Chapter 33 educational assistance, an individual must first show that he had active duty service after September 10, 2001, meet certain minimum service requirements, and make an irrevocable election to receive benefits under 38 U.S.C. Chapter 33. 38 C.F.R. § 21.9520. Chapter 1606 - Montgomery GI Bill - Selected Reserve Chapter 1606 of Title 10, U.S. Code sets forth provisions to allow for educational assistance for Reserve members of the Armed Forces after their separation from military service. See 38 U.S.C.A. §§ 16131-16137. VA will pay educational assistance to an eligible reservist while he is pursuing approved courses in a program of education. 38 C.F.R. § 21.7540. A threshold requirement for Chapter 1606 educational assistance is the completion of certain requisite service. In order to be entitled to Chapter 1606 educational assistance, an individual must first become a member of the Reserve and enlist, reenlist, or extend enlistment in the Selected Reserve such that the total period of service is at least 6 years from the date of enlistment, reenlistment, or extension, or be appointed or serving as a Reserve officer for at least 6 years. See 10 U.S.C.A. §§ 16131, 16132; 38 C.F.R. § 21.7540. Chapter 1607- REAP Chapter 1606 of Title 10, U.S. Code sets forth provisions to allow for educational assistance for Reserve members of the Armed Forces after their separation from military service. See 38 U.S.C.A. §§ 16161-16166. VA will pay Chapter 1607 educational assistance to an eligible reservist who served on or after September 11, 2001, if the reservist served on active duty in support of a contingency operation for 90 days or more, or performed full time National Guard duty for 90 consecutive days or more. See 38 U.S.C.A. §§ 16162, 16163; 38 C.F.R. § 21.9520. Analysis In this case, the Veteran asserts that his active service from September 1970 to June 1991 qualifies him for educational benefits under the provisions of Title 38, Chapters 30, 32 and/or 33, United States Code, or, in the alternative, he is entitled to education benefits under the provisions of Title 10, Chapters 1606 and/or 1607, United States Code. The Veteran argues that he was promised education benefits during the Vietnam War and again at his retirement from service in June 1991. He indicated that he was never informed of any eligibility period for these benefits. In this case, the evidence shows that the Veteran entered active service in September 1970. Therefore, he does not meet the initial eligibility requirements for Chapter 30 MGIB benefits under 38 U.S.C.A. § 3011(a)(1)(A) since he did not first become a member of the Armed Forces or first enter active duty as a member of the Armed Forces after June 30, 1985. Likewise, he does not meet the initial eligibility requirements for Chapter 32 VEAP benefits under 38 U.S.C.A. § 3221(a) since he did not enter active duty as a member of the Armed Forces after January 1, 1977. The evidence also shows that the Veteran did not serve on active duty after September 10, 2001. Therefore, he does not meet the initial eligibility requirements for Chapter 33 Post 9/11 benefits under 38 U.S.C.A. § 3311. Moreover, the Veteran did not have service in the Selected Reserve and did not serve in the Reserve after September 10, 2001. As such, he does not meet the eligibility requirements for educational benefits under the Montgomery GI Bill - Selected Reserve or REAP. The Veteran's contentions with respect to his eligibility have been sympathetically considered, but in this case, the applicable law and regulations as written preclude a grant of benefits, even on an equitable basis. See 38 U.S.C.A. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). "No equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). The Board is without the authority to disregard the applicable law, notwithstanding any extenuating circumstances that may have existed at the relevant time in question. Congress did not enact any exceptions to the above-discussed legal provisions that would permit a grant of the requested education benefit. As the disposition of this claim is based on the law, and not on the facts of the case, the claim must therefore be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Eligibility for VA educational benefits under Chapters 30, 32 and 33, Title 38, United States Code, and under Chapters 1606 and 1607, Title 10, United States Code, is denied. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs