Citation Nr: 1305592 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 10-41 371 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUE Whether the denial to reissue refund of the Veterans' Educational Assistance Program (VEAP) contributions is correct. ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran was discharged from active military service in January 1992. This appeal comes to the Board of Veterans' Appeals (Board) from a February 2010 administrative determination. FINDING OF FACT A refund check in the amount of $2,700 was issued to the Veteran on February 12, 2003. CONCLUSION OF LAW A VEAP refund check in the amount of $2,700 may not be reissued. 38 U.S.C. §§ 3221, 3222, 3223 (West 2002); 38 C.F.R. §§ 21.5040, 21.5052, 21.5060, 21.5064 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In February 2010, the Veteran submitted a claim requesting disenrollment from the Post-Vietnam Era Veterans' Educational Assistance Program under Chapter 32, Title 38 of the United States Code, and applying for a refund, noting that education had been completed. See 38 U.S.C. § 3201 et seq.; 38 C.F.R. § 21.5001 et seq. Under 38 C.F.R. § 21.5060, disenrollment from VEAP will occur when a veteran has not utilized all of his or her entitlement benefits within the 10-year period stated in 38 C.F.R. § 21.5041 (in this case 10 years after the Veteran separated from service), and at the end of one year thereafter has not filed a claim for educational assistance allowance as provided in 21.5030(c). Under 38 C.F.R. § 21.5064(a), a disenrolled individual will be refunded all contributions made by him or her to the fund. The amount of the contributions refunded upon disenrollment shall be limited to the amount of his or her contributions not utilized to receive benefits as of the date of disenrollment, less any outstanding debts resulting from overpayments of educational assistance allowance. Id. See also 38 C.F.R. § 21.5052 (setting forth contribution requirements). In a February 2010 letter, the RO informed the Veteran that the records indicated that she had been issued a refund of her VEAP contributions on February 12, 2003 in the amount of $2,700. She responded that she did not recall receiving such a check, and indicated that she had reviewed her bank records from mid-February to mid-March 2003 but had not seen any record of a $2,700 deposit. These bank records do not appear to have ever been submitted to VA. In her substantive appeal, the Veteran argued that a refund was due, because she had never requested a refund. However, by regulation, the Veteran would not have needed to specifically request a refund, as disenrollment from VEAP would have automatically occurred in her case once she had failed to utilize all of her entitlement benefits within the 10-year period and had not filed a claim for educational assistance allowance within the one year thereafter. As such, the Veteran would not have needed to request a refund, as one would have issued approximately 11 years after she separated from service. In her claim, the Veteran reported that she was discharged from service on January 30, 1992. As such, the Veteran's delimiting date for using her education benefits (i.e., the date these benefits expired) was January 30, 2002, ten years after she separated from active service. See 38 U.S.C.A. § 3232; 38 C.F.R. § 21.5041. There is no allegation that she filed a claim for educational assistance allowance within the one year thereafter. As such, by law the RO would have been required to automatically refund the Veteran's contributions in February 2003. Such action is consistent with the evidence showing that a check was in fact issued in February 2003. The RO initiated a check tracer, which showed that a check (check symbol 2221 and check range 64248364) for $2,700 was in fact issued on February 12, 2003 and paid on February 19, 2003. The Board finds that the presumption of regularity in the administrative process applies to the question of whether the Veteran was issued a check in the amount of $2,700 on or around February 12, 2003. See United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926) (holding that there is a presumption of regularity under which it is assumed that government officials "have properly discharged their official duties."). Here, research confirmed that a check for $2,700 was issued to the Veteran in February 2003. A check in this amount and as of this date is consistent with the fact that there is no allegation that the Veteran had used her contributions (with $2700 being the maximum refund allowable in such a case), and that February 2003 would have been approximately eleven years after the Veteran's separation from service at which time the RO would have been compelled by law to refund to her any unused contributions that she had made. The presumption of regularity in the administrative process can only be rebutted by "clear evidence to the contrary" and a statement of nonreceipt does not by itself constitute the type of clear evidence needed to rebut the presumption of regularity. Schoolman v. West, 12 Vet. App. 307, 310 (1999); Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). Thus, the onus is on the Veteran to show that she in fact never received the check. This burden has not been met in the present case. The Veteran only inquired about the check in February 2010 approximately seven years after it was presumably issued to her and approximately seventeen years after she separated from service. She has argued that she does not remember having ever requested a refund and that she never received a check. Unfortunately, these assertions, alone, do not constitute "clear evidence" that such a check was never issued/mailed to her; particularly in light of the evidence showing that a check was in fact issued. Given these conclusions, the Board is unable to render a disposition favorable to the Veteran in this case. The records in the file show that the Veteran was sent a check in the amount of $2,700 in February 2003, and evidence sufficient enough to rebut the presumption of regularity has not been presented. As this issue does not involve a claim for benefits but rather a dispute of fact as to whether the Veteran received a refund check of unapplied contributions, the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, sets forth VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, because the issue before the Board does not involve a claim for benefits but rather a question of fact as to whether a refund check was issued in 2003, the Board finds that the VCAA does not apply. ORDER The claim for reissuance of a refund check in the amount of $2,700 under the Veterans' Educational Assistance Program is denied. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs