Citation Nr: 1307255 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 10-41 981 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to revocation of an education benefits election effective August 9, 2010, under the provisions of Chapter 33, Title 38, United States Code (Post-9/11 GI Bill or Chapter 33). ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1999 to September 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 decision by the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDING OF FACT In a VA Form 22-1990, Application for VA Education Benefits, the Veteran made an irrevocable election to receive Chapter 33 benefits effective August 9, 2010. CONCLUSION OF LAW Revocation of an education benefits election effective August 9, 2010, under the provisions of Chapter 33, Title 38, United States Code, must be denied as a matter of law. 38 CFR § 21.9520 (2012); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION VA regulations specific to education benefits identify the notice and assistance requirements. See 38 C.F.R. §§ 21.1031, 21.1032, 21.9510 (2012). Although no notice was provided in the case, as the matter at issue does not involve an entitlement claim, the Board finds no additional development is required. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (holding that the statutory and regulatory provisions pertaining to VA's duty to notify and assist do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence). All relevant evidence necessary for an equitable disposition of this appeal has been obtained. VA regulations provide, generally, that an individual may establish eligibility for Chapter 33 educational assistance based on active duty service after September 10, 2001, if he or she serves a minimum of 90 aggregate days and is separated from active service with an honorable discharge. Then, after meeting the minimum service requirements the individual makes an irrevocable election to receive benefits under 38 U.S.C. chapter 33 by relinquishing eligibility under either 38 U.S.C. chapter 30, or 10 U.S.C. chapter 106a, 1606, or 1607. An individual may make an irrevocable election to receive benefits under this chapter by properly completing VA Form 22-1990. 38 C.F.R. § 21.9520 (2012). The regulations provide that 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. 38 C.F.R. § 21.9550 (2012). Under subsection (b)(1) of that regulation 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). VA regulations also provide a limit on training under two or more programs and the aggregate period for which any person may receive assistance under chapter 30 and chapter 33 may not exceed 48 months (or the part-time equivalent). 38 CFR § 21.4020 (2012). VA will, however, not make a charge against an individual's entitlement (1) For an approved licensing or certification test as provided under 38 C.F.R. § 21.9665; or (2) For tutorial assistance as provided under 38 C.F.R. § 21.9685; or (3) For the rural relocation benefit as provided under 38 C.F.R. § 21.9660; or (4) For pursuit of a course or courses when the individual (i) Had to discontinue the course or courses as a result of being ordered to (A) Active duty service under 10 U.S.C. 688, 12301(a), 12301(d), 12301(g), 12302, or 12304; or (B) A new duty location or assignment or to perform an increased amount of work; and (ii) Did not receive credit or lost training time for any portion of the period of enrollment in the course or courses for which the eligible individual was pursuing to complete his or her approved educational, professional, or vocational objective as a result of having to discontinue pursuit. 38 CFR § 21.9560 (2012). In this case, the record shows that on May 21, 2010, the Veteran submitted a VA Form 22-1990, Application for VA Education Benefits. She noted she had previously applied for Chapter 30 benefits and acknowledged that in electing Chapter 33 benefits in lieu of Chapter 30 benefits her entitlement would be limited to the months of entitlement remaining under Chapter 30 and that her election was irrevocable and could not be changed. VA records show that upon the effective date of the Veteran's election of Chapter 33 education benefits, August 9, 2010, she had one month and 24 days of Chapter 30 education benefits remaining. She was provided a certificate of eligibility letter in May 2010 for education benefits under Chapter 33 and notified that she had one month and 24 days of full time benefits. In her August 2010 notice of disagreement the Veteran stated that she had been provided inaccurate information by her advisor as to the date her Chapter 30 benefits would run out and that she had immediately notified VA that the August 9, 2010, effective date had been provided in error. She requested, in essence, that her Chapter 33 benefits election effective August 9, 2010, be revoked or revised to allow her to use her remaining one month and 24 days of Chapter 30 benefits so that she could receive up to 12 additional months of Chapter 33 benefits. She reiterated her claim in an August 2010 VA Form 9 and asserted that she would experience financial hardship if her appeal was denied. Based upon the evidence of record, the Board finds the Veteran's completion of VA Form 22-1990 in May 2010 was an irrevocable election to receive Chapter 33 education benefits. On the date of election on August 9, 2010, VA records show she had one months and 24 days of education benefits under Chapter 30 remaining which provided one months and 24 days for Chapter 33 benefits in accordance with the provisions of 38 C.F.R. § 21.9550(b)(1). The Veteran's statements are not in dispute and the Board is sympathetic to her request. There is, however, no apparent basis in law or fact whereby her Chapter 33 education benefits election may be revoked or revised or her Chapter 33 benefits otherwise extended. The United States Supreme Court has held that "payments of money from the Federal Treasury are limited to those authorized by statute." See OPM v. Richmond, 496 U.S. 414, 416 (1990); McTighe v. Brown, 7 Vet. App. 29 (1994) (holding that Richmond meant VA could not pay benefits unless authorized by Congress and that erroneous advice given by a government employee cannot be used to estop the government from denying benefits). The United States Court of Appeals for Veterans Claims has held that in cases such as this, where the law is dispositive, the claim should be denied because of the absence of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to revocation of an education benefits election effective August 9, 2010, under the provisions of Chapter 33, Title 38, United States Code, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs