Citation Nr: 1304804	
Decision Date: 02/08/13    Archive Date: 02/19/13

DOCKET NO.  10-15 259	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to educational assistance benefits under Chapter 33 of Title 38 of the United States Code (Post-9/11 GI Bill) in excess of nine days.


ATTORNEY FOR THE BOARD

G. A. Wasik, Counsel


INTRODUCTION

The Veteran served on active duty from March 2001 to December 2004.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating decision of the Education Office at the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied entitlement to the benefit sought on appeal.  The appellant appealed the decision to the Board, and the case was referred to the Board for appellate review. 

The issue on appeal was before the Board in June 2011, when it was remanded for additional development.  After the development was completed, the case was returned to the Board.  The issue on appeal was again before the Board in April 2012 when the claim was denied.  


FINDINGS OF FACT

1.  The April 19, 2012 Board decision which denied entitlement to educational assistance benefits under Chapter 33 of Title 38 of the United States Code (Post-9/11 GI Bill) in excess of nine days contained error which constitutes a denial of due process for the Veteran.  

2.  In May 2009, the Veteran applied for educational benefits under the Post-9/11 GI Bill, effective August 1, 2009, which included an irrevocable election of Post-9/11 GI Bill benefits in lieu of benefits under the Montgomery GI Bill program (Chapter 30). 

3.  On June 10, 2009 VA awarded Chapter 33 benefits, effective August 1, 2009. 

4.  On August 1, 2009, the Veteran had nine days of Chapter 30 benefits remaining. 


CONCLUSIONS OF LAW

1.  Vacatur of the Board's April 19, 2012, decision addressing the issue of entitlement to educational assistance benefits under Chapter 33 of Title 38 of the United States Code (Post-9/11 GI Bill) in excess of nine days, is warranted.  38 U.S.C.A. §§ 7103(c), 7104(a) (West 2002); 38 C.F.R. § 20.904 (2012). 

2.  Entitlement to additional educational assistance of one month only, under the Post-9/11 GI Bill, is warranted.  38 U.S.C.A. §§ 3301-24 (West Supp. 2012); 38 C.F.R. § 21.9550 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

ORDER TO VACATE

The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2012).  In the current case, the Board has determined that the Veteran has been denied due process of law as an error was made in the April 2012 Board decision which denied entitlement to educational assistance benefits under Chapter 33 of Title 38 of the United States Code (Post-9/11 GI Bill) in excess of nine days.  

Accordingly, the April 19, 2012 Board decision addressing the issue of entitlement to educational assistance benefits under Chapter 33 of Title 38 of the United States Code (Post-9/11 GI Bill) in excess of nine days is vacated.  The decision below will be substituted in its place.  

DUTIES TO NOTIFY AND ASSIST

The Board finds that the statutory and regulatory notice and duty to assist provisions are not applicable in this case because the issue presented is solely one of statutory interpretation.  See Manning v. Principi, 16 Vet. App. 534, 542 (2002).  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 21.32, 21.33.  The Veterans Claims Assistant Act of 2000 has no effect on appeals that are decided on an interpretation of the law as opposed to a determination based on fact.  See also Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). 

A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  In this regard, the Board is satisfied as to compliance with the instructions from its June 2011.  Specifically, the June 2011 Board remand instructed the RO to audit the Veteran's Chapter 30 education benefits account in order to provide the basis for the calculation of nine days as the remaining entitlement of Chapter 30 benefits as of August 1, 2009.  A copy of the audit was to be provided to the Veteran and he was to be given an opportunity to respond.  The Board finds that the July 2011 letter containing the requested audit substantially complies with the Board's June 2011 remand directives.  Stegall v. West, 11 Vet. App. 268 (1998).

LAW AND ANALYSIS

The Post-9/11 GI Bill was enacted under Pub. L. 110-252, Title V, § 5003(c), June 30, 2008, 122 Stat. 2375.  See generally 38 U.S.C.A. §§ 3301 -24; 38 C.F.R. § 21.9520.  VA promulgated 38 C.F.R. § 21.9550 which provides that an eligible individual is entitled to a maximum of 36 months of educational assistance under the Post-9/11 GI Bill.  See 38 C.F.R. § 21.9550.  This entitlement period is limited by 38 C.F.R. § 21.9550(b)(1) which states: 

(b)(1) An individual who, as of August 1, 2009, has used entitlement under 38 U.S.C. Chapter 30, but retains unused entitlement under that chapter, makes an irrevocable election to receive educational assistance under the provisions of 38 U.S.C. chapter 33 instead of educational assistance under the provisions of chapter 30, will be limited to one month (or partial month) of entitlement under chapter 33 for each month (or partial month) of unused entitlement under chapter 30 (including any months of chapter 30 entitlement previously transferred to a dependent that the individual has revoked).  38 C.F.R. § 21.9550(b)(1). 

In May 2009, the Veteran applied for educational benefits under the Post-9/11 GI Bill program in lieu of benefits under Chapter 30 by completing and submitting a VA Form 22-1990.  The Veteran requested these benefits effective August 1, 2009.  See generally 38 U.S.C.A. §§ 3301 -24; 38 C.F.R. § 21.9520. 

The July 2011 audit of the Montgomery G.I. Bill entitlement used reflects that as of July 31, 2009, the Veteran had nine days of entitlement left.  It was clarified that when the Veteran reduced his hours from 12 to six on January 29, 2008, and when he reduced his hours from six to three on January 22, 2009, his entitlement increased.  On July 31, 2009, the amount remaining was zero months and nine days.  Accordingly, he had nine days of Chapter 30 benefits remaining.  See 38 U.S.C.A. § 3013(a)(1).  As the Veteran had a partial month of entitlement remaining for Chapter 30 benefits, he is entitled to, at most, one additional month of benefits entitlement under Chapter 33.  

In reviewing the Veteran's contentions herein, it appears he believes he would have received additional benefits under the Post-9/11 GI Bill if he had effectively used up all of his remaining Chapter 30 benefits prior to applying.  This simply is not the case as his Post-9/11 GI Bill benefits are limited to the unused entitlement under Chapter 30.  See 38 C.F.R. § 21.9550(b)(1).  38 C.F.R. § 21.9550(b)(1) applies to any individual who has already used entitlement under 38 U.S.C.A. Chapter 30 when he makes his election to receive educational assistance under chapter 33 instead of chapter 30 and still has some unused entitlement remaining as is the current case.  38 C.F.R. § 21.9550(b)(2) which allows for up to 36 months of entitlement under chapter 33 only applies when an individual, as of August 1, 2009, had not used any entitlement under chapter 30, had been making contributions towards chapter 30 or was a service member who would have been eligible for the program but declined participation.  None of these fact patterns applies in the current situation.  



ORDER

The April 19, 2012 decision of the Board which denied entitlement to educational assistance benefits under Chapter 33 of Title 38 of the United States Code (Post-9/11 GI Bill) in excess of nine days is vacated. 

One month of additional educational assistance, under the Post-9/11 GI Bill is granted.  



____________________________________________
L. M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs