Citation Nr: 1307067 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 11-15 829 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Whether the transfer of entitlement for 20 months of VA educational assistance benefits under 38 U.S.C.A. Chapter 33 (Post-9/11 GI Bill) is correct. REPRESENTATION Appellant represented by: [redacted], Representative on One-Time Basis WITNESSES AT HEARING ON APPEAL The Appellant and R.P, service member ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The service member is on active duty. The appellant is his daughter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Thereafter, the service member's educational folder was returned to his local RO in Los Angeles, California. Although the Muskogee RO adjudicates Chapter 33 matters, the service member's office of original jurisdiction is the Los Angeles, California RO. In June 2012, the service member and the appellant testified at a hearing at the Board's offices in Washington, DC, before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims folder. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT Based on the service member's prior receipt of 28 months of educational benefits under the Chapter 32 (VEAP) program, the appellant is not eligible for transferred educational benefits under the Chapter 33 (Post-9/11 GI Bill) program in excess of 20 months. CONCLUSION OF LAW The requirements for transfer of additional educational assistance benefits under 38 U.S.C.A. Chapter 33 (Post-9/11 GI Bill) have not been met. 38 U.S.C.A. §§ 3319, 3695 (West 2002 & Supp. 2012); 38 C.F.R. §§ 21.4020(a), 21.9550, 21.9570 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Duties to Notify and Assist 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). For educational assistance claims, the regulations delineating the specific notification and assistance requirements are set forth in 38 C.F.R. §§ 21.1031 (duty to notify), 21.1032 (duty to assist). 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." These provisions apply to the Post 9/11 GI Bill program (Chapter 33 benefits). 38 C.F.R. § 21.9510 (2012). In the present case, the Board acknowledges no VCAA letter was sent to the appellant. In any event, the appellant's personal statements and hearing testimony demonstrate she has actual knowledge of what evidence is required to establish her claim. See Mlechick v. Mansfield, 503 F.3d 1340, 1345 (Fed. Cir. 2007) (any notice error not prejudicial when claimant has actual knowledge of the evidence needed to substantiate claim). To that end, the appellant was sufficiently advised in the March 2011 Statement of the Case (SOC) as to why she is not entitled to transfer of more than 20 months of the service member's educational benefits. She has presented argument on her behalf in various statements and at her hearing. Her representative (the service member) has also presented argument. The appellant and the service member asserted that she detrimentally relied on the erroneous advice of VA personnel that she would receive the full amount (36 months) of the service member's transferred Post-9/11 GI benefits. She asserts that on multiple occasions VA personnel also advised her that the service member's previous use of 28 months of educational assistance under the Veterans Educational Assistance Program (VEAP) (Chapter 32) would not lower her entitlement amount. Her argument is essentially one of equity. So the Board is satisfied the appellant was afforded a meaningful opportunity to participate in the adjudication of her claim. Overton v. Nicholson, 20 Vet. App. 427, 435 (2006). At the June 2012 hearing, the undersigned Veterans Law Judge, the service member, and the appellant outlined the issue on appeal and engaged in a colloquy as to substantiation of the claim. The appellant was properly advised that it was unlikely there was any additional outstanding evidence that would be relevant to her education claim. The actions of the Veterans Law Judge supplement VCAA and comply with any duty that is owed during a hearing. In short, the Central office hearing was legally sufficient. Also, in the present case, the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). See also Smith v. Gober, 14 Vet. App. 227, 230 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOGCPREC 5-2004 (June 23, 2004). In fact, the applicable notification and assistance procedures for educational assistance claims under 38 C.F.R. § 21.1031(b) and § 21.1032(d) emphasize that VA has no further duty to notify or assist the claimant when the undisputed facts render the claimant ineligible for the claimed benefit under the law, as is the case here. Therefore, the Board finds that no further action is necessary under the statutory and regulatory duties to notify and assist. Governing Laws and Regulations The Post-9/11 GI Bill was enacted by Congress in June 2008. See Pub. L. No. 110-252, Title V, §§ 5001-5003, 122 Stat. 2357 (2008). The statutory provisions are codified at Title 38 U.S.C.A Chapter 33. VA promulgated new regulations to implement the change in law in March 2009 and the regulations are currently codified at 38 C.F.R. §§ 21.9500 - 21.9770 (2012). Under the Chapter 33 provisions, an eligible individual is entitled to a maximum of 36 months of educational assistance under Chapter 33 and can transfer up to the full 36 months of his or her entitlement to a dependent. 38 C.F.R. §§ 21.9550, 21.9570. However, a transferor may not transfer an amount of entitlement that is greater than the entitlement he or she has available at the time of transfer. That is, under 38 C.F.R. § 21.9570(e), the maximum amount of entitlement a transferor may transfer is the lesser of: (i) thirty-six months of his or her entitlement; or (ii) the maximum amount authorized by the Secretary of the military department concerned; or (iii) the amount of entitlement he or she has available at the time of transfer. In the present case, the service member wished to transfer the full amount (36 months) of his present entitlement to Chapter 33 (Post-9/11 GI Bill) benefits to the appellant for college. However, the service member previously received 28 months of Chapter 32 (VEAP) educational benefits in the 1980s and 1990s. The criteria for the Chapter 32 (VEAP) educational assistance benefits are set forth in 38 U.S.C.A. § 3221; 38 C.F.R. § 21.5040. All Veterans who entered active duty after December 31, 1976, and before July 1, 1985, are eligible to participate in the Chapter 32 (VEAP) program by enrolling during one's period of active service. Although an individual may be entitled to benefits under various education programs, there is a limit as to the total aggregate period for which any person may receive educational assistance under two or more educational programs. VA statute and regulation limits such educational assistance to no more than 48 months. 38 U.S.C.A. § 3695 (West 2002 & Supp. 2012); 38 C.F.R. § 21.4020(a) (2012). Background Facts and Contentions In August 2009, the appellant filed an educational benefits claim seeking a transfer of the full amount (36 months) of the service member's educational benefits under the Chapter 33 (Post-9/11 GI Bill) program. In August 2009, VA received documentation that the Department of Defense (DOD) approved the transfer of the full amount (36 months) of the service member's Chapter 33 (Post-9/11 GI Bill) benefits to the appellant for college. From August 2009 to August 2010, the appellant attended classes at Humboldt State University. During this time period, VA sent several letters to the appellant advising her that she was entitled to the full amount (36 months) of the service member's Chapter 33 (Post-9/11 GI Bill) benefits. In September 2010, the RO issued a decision advising the appellant that the full amount of 36 months of transferred educational benefits was adjusted to 20 months to reflect that the service member had previously participated in the Chapter 32 (VEAP) program. VA determined that since the maximum amount one can receive of educational benefits under two or more programs is 48 months, and 28 months of Chapter 32 (VEAP) benefits was already received by the service member, the appellant was only entitled to receive 20 months of transferred benefits (48 months - 28 months = 20 months remaining). The appellant has appealed the RO's decision to the Board. The appellant contends that she is entitled to the full amount of 36 months of transferred educational benefits, since she was initially awarded this level of benefits due to an error committed by VA. She indicates that while attending college for over a year, she received multiple letters from VA reaffirming her entitlement to the full amount of 36 months of transferred educational benefits. She planned her college education based on the full 36 months of Chapter 33 (Post-9/11 GI Bill) benefits. In other words, she relied on these benefits to her detriment. She states that both she and the service member on multiple occasions inquired with VA counselors as to whether the service member's previous use of 28 months of Chapter 32 (VEAP) benefits would lessen the amount of benefits that could be transferred to the appellant. Each time she says VA advised that the service member's previous receipt of Chapter 32 (VEAP) benefits would have no bearing on the transfer of Chapter 33 (Post-9/11 GI Bill) benefits to the appellant. She maintains that had she known of the decreased benefit, she would have attended the first two years of college at a less expensive community college, saving the last two years for the more expensive Humboldt State University, to be covered by the full amount of Chapter 33 (Post-9/11 GI Bill) benefits. The situation has created an unexpected financial burden for both her and her service member father. She asserts she is being penalized for VA's error, as both she and her father had done due diligence in researching the VA benefits available. See November 2010 Notice of Disagreement (NOD); April 2011 VA Form 9; January 2012 service member's statement; June 2012 hearing testimony. Analysis In the instant case, even though VA initially informed the appellant in October 2009 that she was entitled to a transfer of a full 36 months of educational benefits under Chapter 33 (Post-9/11 GI Bill), the service member was in fact only eligible for 20 months of educational assistance and could not by law transfer more than this amount to the appellant. See 38 C.F.R. §§ 21.4020(a), 21.9570. To the extent the service member and appellant argue that they were provided with erroneous information by VA counselors concerning the service member's previous use of 28 months of Chapter 32 (VEAP) benefits, the Court has also held that since payment of government benefits must be authorized by statute, inaccurate advice does not create any legal right to benefits where such benefits are otherwise precluded. See Shields v. Brown, 8 Vet. App. 346, 351 (1995); McTighe v. Brown, 7 Vet. App. 29, 30 (1994) ("erroneous advice given by a government employee cannot be used to estop the government from denying benefits"); see also Harvey v. Brown, 6 Vet. App. 416, 424 (1994) (holding that an appellant was not entitled to education benefits based on his assertion that misleading or erroneous information was provided regarding education benefits). In other words, even if the appellant and the service member were misinformed by either college or VA officials, the Board is without legal authority to grant the claim on either basis. To the extent that the service member and the appellant were unaware of the detrimental impact of the service member's previous use of 28 months of Chapter 32 (VEAP) benefits, it is clear that ignorance cannot be used as an excuse for failure to follow a promulgated regulation. See Morris v. Derwinski, 1 Vet. App. 260 (1991), citing Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-85 (1947). See also Velez v. West, 11 Vet. App. 148, 156-57 (1998). The Court in Morris noted that the Supreme Court of the United States had held that persons dealing with the Government were charged with knowledge of Federal statutes and lawfully promulgated agency regulations, regardless of actual knowledge or hardship resulting from innocent ignorance. Morris, 1 Vet. App. at 265. In fact, the Court most recently confirmed VA regulations are "binding on all who seek to come within their sphere," regardless of whether an appellant has actual knowledge of what is in the regulations. Jernigan v. Shinseki, 25 Vet. App. 220 (2012). While the Board is sympathetic to the appellant's frustration, VA (including the Board) is bound by the applicable law and regulations as written. 38 U.S.C.A. § 7104(c). The Board appreciates the appellant and the service member's forthright statements. However, the Board is without authority to grant benefits simply on the basis that it might be perceived as equitable. See 38 U.S.C.A. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board observes that "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 legal criteria governing the payment of educational assistance benefits are clear and specific and 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 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). Moreover, because the law, rather than the facts of the case, is controlling, the provisions of 38 U.S.C.A. § 5107(b) are not for application. ORDER The transfer of entitlement for 20 months of VA educational assistance benefits under 38 U.S.C.A. Chapter 33 (Post-9/11 GI Bill) is correct, such that the appellant's claim is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs