Citation Nr: 1306432 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 10-22 332A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to eligibility for education benefits under the provisions of Chapter 30, Title 38, United States Code (Montgomery GI Bill). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from September 10, 1996 to March 31, 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 letter of determination rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied eligibility for Chapter 30 education benefits. The Veteran timely appealed that decision. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in November 2010; a transcript of that hearing is associated with the claims file. This case was initially before the Board in February 2012, when it was remanded for further development. That development having been completed, the case has been returned to the Board for further appellate review at this time. FINDINGS OF FACT 1. The Veteran served on active duty from September 10, 1996 to March 31, 1999. 2. The Veteran's delimiting period for receiving Chapter 30 education benefits expired on April 1, 2009. 3. The Veteran's request for Chapter 30 education benefits was received on March 13, 2009, prior to the expiration of her 10-year period of eligibility, but she had not yet enrolled in any class prior to April 1, 2009. 4. The Veteran did not submit a timely request to extend the period of eligibility. CONCLUSION OF LAW The criteria for eligibility for Chapter 30 education benefits have not been met. 38 U.S.C.A. §§ 3011, 3031 (West 2002); 38 C.F.R. §§ 21.1033, 21.7042, 21.7050, 21.7051, 21.7135(s) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in March 2012 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's application for education benefits and the necessary service documents to decide the education benefits claim. Moreover, her statements in support of the claim are of record, including testimony provided at a November 2010 before the undersigned. The Board has carefully reviewed such statements and other documents and concludes that no available outstanding evidence has been identified. The Board has also determined that there is any outstanding evidence with respect to the Veteran's claim herein decided. The Board additionally remanded this case in order for a notice letter to be sent to the Veteran; that notice letter was sent to the Veteran in March 2012, as noted above. Therefore, the Board finds that its remand order has been substantially complied with, and it may proceed to adjudicate upon the merits of this case. See Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). Moreover, there are certain instances where the VCAA does not apply because the issue presented is solely one of statutory interpretation and/or the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 230 (2000) (claim that a Federal statute provides for payment of interest on past-due benefits), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). This is indeed the situation in this case. The facts are not in dispute; instead, resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to eligibility for education benefits. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002); see also VAOPGCPREC 5-2004 (June 23, 2004). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis An individual may establish eligibility for basic educational assistance under Chapter 30 by satisfying certain service prerequisites. Under 38 U.S.C.A. § 3011(a)(1)(A) and 38 C.F.R. § 21.7042(a)(1), an individual may establish eligibility by showing that he first entered on active duty as a member of the armed forces after June 30, 1985. The individual also must demonstrate that he served at least three years of continuous active duty, or at least two years if the individual's initial obligated period of active duty was less than three years. 38 U.S.C.A. § 3011(a)(1)(A)(1); 38 C.F.R. § 21.7042(a)(2). Significantly, the governing legal criteria specify that in order to be eligible to receive educational benefits pursuant to Chapter 30, an individual, after June 30, 1985, must continue on active duty in the Armed Forces for at least three years, unless discharged or released for a qualifying reason (i.e. a service-connected disability, a medical condition which preexisted service, hardship, the convenience of the Government if the individual completed not less than 30 months continuous active duty after that date, involuntarily for the convenience of the Government as a result of a reduction in force, or for a physical or mental condition not characterized as a disability and not the result of his own willful misconduct). 38 U.S.C.A. § 3011(a); 38 C.F.R. § 21.7042(a)(5). In this case, the Veteran was enlisted after June 30, 1985, but was enlisted for less than three years of service and her obligation of service was greater than 2 years. The Veteran, however, is shown to have been discharged for what is considered a qualifying reason: separation code HRB is a Condition Interfering with Duty (CIWD), as shown by the Department of Defense records. Accordingly, the Veteran would be eligible for one month of education benefits for every month of service (in this case, 30 months of benefits), if she is otherwise eligible for that award. For the reasons discussed below, however, the Board finds that she is otherwise disqualified from being eligible for entitlement to education benefits. As applicable to this case, the general rule with regard to Chapter 30 education assistance benefits is that VA will not provide basic educational assistance or supplemental educational assistance to a veteran beyond 10 years from the date of the veteran's last discharge or release from a period of active duty of 90 days or more of continuous service. 38 U.S.C.A. § 3031(a); 38 C.F.R. § 21.7050(a). Exceptions to this rule provide that the 10-year period can be extended if: (1) the individual was initially prevented from establishing eligibility for educational assistance due to the character of his discharge, but was later able to establish eligibility as a result of a change, correction, modification, or other corrective action by competent military authority; (2) the individual was captured and held as a prisoner of war by a foreign government or power after his last discharge or release from active duty; (3) the individual was prevented from pursuing his chosen program of education before the expiration of the 10-year period because of a physical or mental disability not the result of his own willful misconduct; (4) the individual was enrolled in an educational institution regularly operated on the quarter or semester system and the period of entitlement under 38 U.S.C.A. § 3013 expired during a quarter or semester; or, (5) the individual was enrolled in an educational institution not regularly operated on the quarter or semester system and the period of entitlement under 38 U.S.C.A. § 3013 expired after a major portion of a course was completed. 38 U.S.C.A. § 3031(b), (c), (d), and (f); 38 C.F.R. §§ 21.7050(f), (g), 21.7051(a), 21.7135(s). VA must receive a claim for an extended period of eligibility by the later of the following dates: (1) one year from the date on which a veteran's original period of eligibility ended, or (2) one year from the date on which a veteran's physical or mental disability no longer prevented him from beginning or resuming a chosen program of education. 38 C.F.R. § 21.1033(c). VA may extend for good cause a time limit within which a claimant is required to act to perfect a claim or challenge an adverse VA decision. VA may grant such an extension only when the following conditions are met: (1) when a claimant requests an extension after expiration of a time limit, she must take the required action concurrently with or before the filing of that request; and (2) the claimant must show good cause as to why she could not take the required action during the original time period and could not have taken the required action sooner. 38 C.F.R. § 20.1033(e)(1). The Veteran's only verified period of active duty was from September 10, 1996 to March 31, 1999. Ten years from the date of her discharge from active duty was April 1, 2009. Therefore, the Veteran's delimiting date is April 1, 2009. The Veteran did not use her education benefits prior to April 1, 2009 and she became ineligible for VA educational assistance after that date. The Board recognizes that the Veteran filed her claim for education benefits on March 13, 2009, which is prior to the delimiting date in this case. However, the Board also recognizes that eligibility for educational benefits received on March 13, 2009 would have been awarded beginning April 1, 2009. In this case, the effective date is also the delimiting date. Thus, if the Board were to award benefits in this case, the eligibility date and the delimiting date would essentially be the same date. Unfortunately, as the Veteran was not previously enrolled in any class prior to April 1, 2009, any decision granting eligibility would now necessarily be used after the delimiting date in this case. Accordingly, the Board cannot award even one month of education benefits in this case. 38 U.S.C.A. § 3031(a); 38 C.F.R. § 21.7050(a). Moreover, the Board notes that the Veteran does not currently fall under any of the exceptions to extension of the 10-year time period. The Veteran was not a prisoner of war, nor was she already enrolled in either a semester or non-semester educational institution at the time of her claim. She therefore does not meet Exceptions (2), (4), or (5) above. With respect to Exception (3), the Veteran testified at her hearing that she was previously unable to pursue getting her commercial driver's license (CDL) during the 10-year period because she had too many traffic violations and she lost her driver's license. Unfortunately, the Board cannot find this reason to be a valid mental or physical disability which would toll the 10-year time period. The Veteran additionally stated that she was also an addict. She did not elaborate as to what she was an addict of and there is no medical evidence as to what type of addiction the Veteran had. However, the Board notes that "willful misconduct" means an act involving conscious wrongdoing or known prohibited action; (1) it involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences), (2) Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct, (3) Willful misconduct will not be determinative unless it is the proximate cause of injury disease or death. 38 C.F.R. § 3.1(n) (2012). In this case, while the Board does not wish to impugn the Veteran's integrity, the Board notes that most addictions involve an act of conscious wrongdoing or known prohibited act. While the Board does not wish to speculate too much, the Board notes that addiction to known prohibited substances, such as illicit drugs, would be considered willful misconduct. Moreover, the Board notes that other types of addictions such as gambling addiction would not necessarily prohibit the Veteran from pursuing her chosen program of education before the expiration of the 10-year period. The Veteran also denied being hospitalized for any reason during the 10-year statutory period in her November 2010 hearing; though, she did state that she was tied up in court proceedings due to her addiction. Finally, the Board notes that the Veteran, as of this time, has not stated at any time that she changed the character of her discharge or filed to do so, which would toll the 10-year period. Also, the Board notes that it appears that a change in discharge status for this Veteran would not change the outcome of this decision, in that the Veteran's current status already provides basic eligibility, but that she is merely time-barred by statute from exercising such benefits because she did not use them within a specific amount of time. The Board's understanding of upgrading the Veteran's current character of discharge would be to provide her additional months of eligibility, but would not extend the 10-year period within which she needs to use those benefits. Accordingly, the legal criteria in this case are clear and the pertinent facts are not in dispute. The Veteran did not submit a timely claim for VA education benefits prior to her delimiting date of April 1, 2009 or a timely request to extend the delimiting date. Unfortunately, the Board has no authority to create exceptions, or to overturn or to disregard this very specific limitation on the award of Chapter 30 education benefits. 38 U.S.C.A. § 7104(a) (West 2002); see Harvey v. Brown, 6 Vet. App. at 423 (payments of money from the Federal Treasury are limited to those authorized by statute). In Harvey, the United States Court of Appeals for Veterans Claims pointed out that it is a federal crime, punishable by fine and imprisonment, for any Government officer or employee to knowingly spend money in excess of that appropriated by Congress. Id. at 424, citing OPM v. Richmond, 496 U.S. 414, 430, 110 S. Ct. 2465, 2474 (1990). Where, as here, the law and not the evidence is dispositive, the Veteran's claim for education benefits under the provisions of Chapter 30 must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to eligibility for Chapter 30 education benefits is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs