Citation Nr: 1305845 Decision Date: 02/20/13 Archive Date: 02/27/13 DOCKET NO. 11-25 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to additional Department of Veterans Affairs (VA) educational assistance benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill). WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from May 2001 to March 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2011 administrative decision of a Department of Veterans Affairs (VA) Regional Office (RO), which notified the Veteran that as of March 17, 2011 all of his VA educational assistance benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) had been exhausted and he was not entitled to any more educational benefits. He appeals essentially for 12 months of additional educational benefits beyond March 17, 2011. In September 2012 a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the record. At the hearing, the Veteran submitted additional evidence in the form of documents showing the debts (housing/education) he incurred as a result of believing he had more Chapter 33 education benefits than he was later told he did, as well as copies of letters from the Veterans Benefits Administration to indicate that VA was flooded with education benefit applications in August 2009 with the enactment of the new Post-9/11 GI Bill and was working overtime to get them processed. This evidence was not accompanied with a waiver of the right to have the RO initially consider the evidence in accordance with 38 C.F.R. § 20.1304. Nevertheless, the additional evidence does not have a bearing on a material issue of fact in this case; consideration of the evidence will not affect either way the outcome of the decision. For this reason, the additional evidence need not be referred to the RO for initial consideration. 38 C.F.R. § 20.1304(c). In February 2013, the Board sent the Veteran a copy of the hearing transcript, copies of all the newly submitted evidence he had presented at the hearing, and a copy of his education file, as requested in statements received in September 2012 and January 2013. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran previously completed 16 months and 13 days of entitlement to Chapter 30 educational assistance benefits (Montgomery GI Bill); there were 19 months and 17 days remaining on his entitlement in 2009. 2. Effective August 1, 2009, the Veteran made an irrevocable election to transfer his remaining entitlement to educational assistance benefits under Chapter 30 to Chapter 33 educational assistance benefits (Post-9/11 GI Bill); in proceeding with this election, he evidently believed (based on information he received from VA personnel) that the new Post-9/11 GI Bill would afford him 12 months of additional educational assistance benefits, for a total of 31 months and 17 days of entitlement. 3. Under VA law, the Veteran was permitted to transfer no more than 19 months and 17 days of educational assistance entitlement; there is no provision in the law that would afford him an additional 12 months of entitlement under the Post-9/11 GI Bill. 4. During the period from August 24, 2009 to March 17, 2011, the Veteran who was enrolled in a higher education program at a college and then a university, received 19 months and 17 days of Chapter 33 educational assistance benefits that he had transferred from his remaining entitlement under Chapter 30; he is not entitled to additional Chapter 33 benefits. CONCLUSION OF LAW The Veteran has no legal entitlement to additional VA educational assistance benefits under Chapter 33, Title 38, United States Code. 38 U.S.C.A. § 3319 (West 2002 & Supp. 2010); 38 C.F.R. §§ 21.4020, 21.9550 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA provides, among other things, that the VA will make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim for benefits under laws administered by the VA. The VCAA also requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A. The record on appeal does not reflect that the Veteran was notified of the VCAA as required by 38 U.S.C.A. § 5103(a). Nevertheless, upon further review, it is not clear that such notice is required in this case because the benefits sought are found in Chapter 33 of Title 38. See Simms v. Nicholson, 19 Vet. App. 453, 456 (2007) (holding that the VCAA applied only to the award of benefits under Chapter 51 of 38 U.S.C.A.); Barger v. Principi, 16 Vet. App. 132, 138 (2002) ("the notice and duty to assist provisions of the [VCAA] . . . are relevant to a different Chapter of Title 38 and do not apply to this appeal"). VA educational programs have their own provisions that address notification and assistance. For example, under 38 C.F.R. § 21.1031(b) "if a formal claim for educational assistance is incomplete, or if VA requires additional information or evidence to adjudicate the claim, VA will notify the claimant of the evidence and/or information necessary to complete or adjudicate the claim and the time limit provisions of § 21.1032(d)." Furthermore, as will be explained below, it is the law, and not the evidence, that is dispositive in this case. When there is an error in the VCAA notice, or in this case the absence of the VCAA notice, there is no prejudice to a claimant as a result of the error if the benefit sought could not possibly have been awarded as a matter of law. See Mayfield v. Nicholson, 19 Vet. App. 103, 116 (2005) ("This Court has held that an error is nonprejudicial where the benefit sought could not possibly have been awarded as a matter of law."); see also Manning v. Principi, 16 Vet. App. 534 (2002); Smith v. Gober, 14 Vet. App. 227 (2002); DelaCruz v. Principi, 15 Vet. App. 143 (2002) (VCAA not applicable where law, not the factual evidence, is dispositive). An opinion from the VA General Counsel has held that the VA is not required to provide notice of the information and evidence necessary to substantiate a claim or required to develop evidence to substantiate a claim where the claim cannot be substantiated because there is no legal basis for the claim or because the undisputed facts render the claimant ineligible for the claimed benefit. See VAOPGCPREC 5-2004 (June 23, 2004). Therefore, the Board finds that no further action is necessary under the VCAA on the basis that it is the law, not the evidence, that is dispositive in this case. II. Merits of Claim The Veteran's basic eligibility for Chapter 33 educational assistance benefits is not at issue, as VA had found him eligible to receive such benefits for a period from August 24, 2009 to March 17, 2011. During this time, the Veteran was enrolled in higher education programs - first at Richard J. Daley College and then at the University of Illinois at Chicago - and he received a total of 19 months and 17 days of Chapter 33 benefits. These benefits represent the exact amount of benefits he transferred from his remaining Chapter 30 (Montgomery GI Bill) entitlement to the new Chapter 33 program in August 2009. This appeal addresses whether under the law he is entitled to additional Chapter 33 benefits, beyond those already paid. In statements and in testimony, the Veteran explained his position on the matter. He essentially argues that when he transferred his entitlement. beyond the 19 months and 17 days of educational assistance remaining on his Chapter 30 entitlement (which he transferred to the new Chapter 33 program in August 2009) the new Post-9/11 GI Bill, that was enacted into law in 2009, provided for an additional 12 months of educational assistance benefits. He indicates that when he opted for benefits under Chapter 33, he was then told by VA representatives that he had 31 months and 17 days of entitlement. He was told that he qualified under both Chapter 30 and Chapter 33 programs, as long as he did not exceed 48 months. He contends that VA should either honor its contract with him (i.e., provide 31 months and 17 days of educational benefits) or grant him the remainder of the balance of his Chapter 30 benefits as of August 1, 2009. He also claims that as a VA agent made a false representation to him of his true benefits, upon which he relied to his detriment, the contract should be declared void. He asserts that when he transferred his remaining Chapter 30 benefits to the Chapter 33 program, he no longer had the ability to check his remaining entitlement on VONAPP (Veterans On-Line Application program), so he was not aware of the exhaustion of his benefits until after March 2011, when notified by VA. He claims he never received the initial VA letter sent in August 2009, which indicated that his remaining entitlement was 19 months and 17 days (and that as of December 12, 2009 he had 15 months and 9 days remaining on his entitlement). He also points to a January 2011 VA letter regarding his Chapter 33 education assistance benefits, which indicates that his remaining benefits as of May 6, 2011 would consist of 10 months and 10 days of benefits. This case essentially concerns the determination of the amount of benefits an individual may be entitled to under Chapter 33 (Post-9/11 GI Bill) following an irrevocable election for such benefits in lieu of entitlement under another education program. It is first noted that the election to transfer his entitlement to Chapter 30 to Chapter 33 is not itself in question. Prior to August 1, 2009, the Veteran through VONAPP filed VAF 22-1990, an application for Chapter 33 education benefits in lieu of Chapter 30 education benefits. In July 2009, a phone call log indicates that the Veteran called VA and was upset that his Chapter 33 request, received in May 2009, had not yet been processed. There was a note in his file to expedite his request. In August 2009, VA sent him a letter (at the address he provided in his application) informing him that he was awarded education benefits under the Post-9/11 GI Bill, and that as of December 12, 2009, he would have remaining 15 months and 9 days of benefits. This letter was not shown to have been returned as undeliverable. Thus, by completing VA Form 22-1990, the Veteran had made an irrevocable election to receive benefits under Chapter 33. 38 C.F.R. § 21.9520(c)(2). Further, he was duly notified of his entitlement balance under Chapter 33. Under governing law, an eligible individual is entitled to a maximum of 36 months of educational assistance (or its equivalent in part-time educational assistance) under 38 U.S.C. Chapter 33, subject to the provisions of § 21.4020 and this section. 38 C.F.R. § 21.9550(a). Where an individual is eligible for two or more education programs, the aggregate period for which any person may receive assistance may not exceed 48 months (or the part-time equivalent). 38 C.F.R. § 21.4020. Where an individual who, as of August 1, 2009, has used entitlement under 38 U.S.C.A. Chapter 30 (Montgomery GII Bill), but retains unused entitlement under that chapter, and makes an irrevocable election to receive educational assistance under the provisions of 38 U.S.C. Chapter 33 (Post-9/11 GI Bill) instead of educational assistance under the provisions of Chapter 30, he/she 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. 38 C.F.R. § 21.9550(b)(1). Where an individual, who as of August 1, 2009, was eligible under 38 U.S.C. Chapter 30, had not used any entitlement under that program, was making contributions towards Chapter 30, or was a servicemember who would have been eligible for Chapter 30 if he or she had not declined participation, he/she will receive 36 months of entitlement under Chapter 33. 38 C.F.R. § 21.9550(b)(2). In short, if an individual is eligible for education benefits under Chapter 30, but uses none of his/her entitlement and irrevocably elects to receive Chapter 33 benefits in lieu of benefits under Chapter 30, that individual can be awarded 36 months of entitlement under Chapter 33. However, if an individual is eligible for education benefits under Chapter 30, but uses some of his/her entitlement before irrevocably electing to receive Chapter 33 benefits in lieu of benefits under Chapter 30, that individual may be awarded the equivalent of the entitlement that remained unused under Chapter 30. There is no provision that entitles the individual to 12 additional months of entitlement under Chapter 33 on top of 36 total months of combined benefits under Chapter 30 and 33. 38 C.F.R. § 21.9550(b)(1). Thus, as applied to the facts of this case, when the Veteran elected to receive educational assistance under Chapter 33 in lieu of his benefits under Chapter 30, his entitlement was limited to that portion or amount of his unused Chapter 30 benefits entitlement. Therefore, by law he was limited to receive 19 months and 17 days of entitlement under Chapter 33. 38 C.F.R. § 21.9550(b)(1). The law does not grant an additional 12 months of entitlement under Chapter 33 through such an election, as the Veteran appears to have believed at the time he made the election up until he was notified of the exhaustion of his Chapter 33 benefits. Indeed, a VA award letter dated in January 2011 indicates, albeit erroneously, that he had 10 months and 10 days remaining of his educational assistance benefits. Nevertheless, copies of the Veteran's computerized records generated from VA databases, which reflect his Chapter 33 entitlement balances, list the Veteran's original/beginning balance as 19 months and 17 days (while also incidentally noting that there was a "48 Month Cap" of 31 months and 16 days). With the error regarding entitlement balance in the January 2011 letter, and the purported misinformation received from VA representatives over the phone, it is understandable that the Veteran believed he had more Chapter 33 benefits to use than he actually had. However, as cited in the regulations above, the Veteran's election to transfer his entitlement from the Chapter 30 program to the Chapter 33 program is irrevocable. That is, his transfer of entitlement is final and permanent, and cannot be reversed to correct the circumstances brought on by what appear to be unfortunate misinterpretations of the new law by VA personnel. Even if at this point VA determined that the transfer of benefits was to be nullified and the Veteran was to retain his entitlement under Chapter 30, per the Veteran's request, the record shows that on March 17, 2011 he had used up his full original entitlement of 36 months of education benefits that were originally awarded under Chapter 30, and he would be entitled to no additional education benefits. It is unfortunate that the Veteran was (as he states) mistakenly informed that he would receive 12 months of educational benefits under Chapter 33 in addition to the 19 months and 17 days remaining on his educational entitlement under Chapter 30. No matter how well-intentioned VA education counselors or representatives were in providing erroneous advice, it does not negate the requirements of the law. McTighe v. Brown, 7 Vet. App. 29 (1994) (payment of government benefits must be authorized by statute; and therefore, erroneous advice given by a government employee cannot be used to estop the government from denying benefits). The Board is sympathetic to the Veteran's claim and his financial hardships while seeking to obtain higher education. Nonetheless, the Board is bound by the law and is without authority to grant benefits on an equitable basis. 38 U.S.C.A. §§ 503, 7104 (West 2001); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Neither the RO nor the Board is free to disregard laws and regulations enacted for the administration of VA educational programs. The eligibility requirements for educational assistance are prescribed by Congress and regulations enacted by the Armed Forces and VA. 38 U.S.C.A. § 7104(c); 38 C.F.R. § 20.101(a). Consequently, the Veteran has no legal entitlement to any additional VA educational assistance under 38 U.S.C. Chapter 33, beyond what he has already received. It is the law in this case, and not the evidence, that is dispositive of the appeal. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As the law is dispositive of the instant case, the benefit of the doubt rule is not for application. As to having incurred various debts based on erroneous information given to him by VA personnel, the Veteran is advised that the Board does not have authority to grant equitable relief, and that petitions for such may be made to the VA Secretary. 38 U.S.C.A. § 503(a). ORDER Entitlement to additional VA educational assistance benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill), is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs