Citation Nr: 1308274	
Decision Date: 03/12/13    Archive Date: 03/20/13

DOCKET NO.  10-36 578	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Whether the Veteran made an irrevocable election for educational assistance under the Post-9/11 GI BILL program (Chapter 33) in lieu of benefits under the Montgomery GI BILL (MGIB) program (Chapter 30).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The appellant


ATTORNEY FOR THE BOARD

H. Seesel, Counsel


INTRODUCTION

The Veteran served on active duty from September 2000 to August 2005.

This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. 



FINDINGS OF FACT

1.  On January 29, 2010, the RO received the Veteran's electronically filed application for educational benefits under the Post-9/11 GI Bill program (Chapter 33) in lieu of benefits under the Montgomery GI Bill (MGIB) program (Chapter 30). 

2.  In February 2010, the RO issued a letter to the Veteran notifying him that he was eligible to receive benefits under the Post-9/11 GI Bill and had 3 months and 29 days of full-time benefits. 



CONCLUSION OF LAW

The Veteran's election for educational benefits under the Post-9/11 GI Bill program in lieu of benefits under the Montgomery GI Bill program is irrevocable.  38 U.S.C.A. §§ 3301 -24 (West 2002); 38 C.F.R. § 21.9520, 21.9550 (2012).




REASONS AND BASES FOR FINDINGS AND CONCLUSION

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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In the present case, the Board acknowledges that no VCAA letter was sent to the Veteran.

However, the United States Court of Appeals for Veterans Claims (Court) has held that VCAA notification procedures do not apply in cases where the applicable chapter of Title 38, United States Code contains its own notice provisions.  See Barger v. Principi, 16 Vet. App. 132, 138 (2002) (VCAA notice was not required in case involving a waiver request).  In the present case, specific VCAA notice was not required because the applicable regulatory notification procedure was contained in 38 C.F.R. § 21.1031 for education claims, rather than the VCAA.  VA's duty to notify is outlined under 38 C.F.R. § 21.1031(b) and the duty to assist is outlined under 38 C.F.R. § 21.1032. 

Furthermore, 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.


Law and Analysis

In January 2010, the Veteran applied for educational benefits under the Post-9/11 GI Bill program via an electronically filed VA Form 22-1990.  The Veteran requested these benefits effective January 28, 2010.  See 38 U.S.C.A. §§ 3301 -24; 38 C.F.R. § 21.9520.  On February 14, 2010, the RO processed the Veteran's application and issued a Certificate of Eligibility under the Post-9/11 GI Bill program.  This Certificate of Eligibility indicated the Veteran had 3 months and 29 days of full-time benefits.  In April 2010, the Veteran filed a notice of disagreement and indicated that he was misinformed and misunderstood the benefits available to him.  He also indicated that he wanted the benefit of the 12 month extension.  In denying the Veteran's request, the RO determined that the Veteran's election of benefits under the Post-9/11 GI Bill program was irrevocable.  

The Veteran provided testimony at a March 2012 Board hearing and explained that he was never informed that he had to exhaust all of his Chapter 30 benefits in order to receive the 12 month extension under Chapter 33.  He testified that he thought the Chapter 30 benefits would roll over to the Chapter 33 benefits and that he was not aware he would lose his Chapter 30 benefits.  As such, he wanted to rescind his election and complete his Chapter 30 benefits and then reap the benefits of the 12 month extension under Chapter 33. 

In accordance with 38 C.F.R. § 21.9520(c)(1)(i), an individual is eligible for Chapter 33 benefits if he has met the minimum service requirements in paragraph (a) and (b), and then 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.  Pursuant to 38 C.F.R. § 21.9520(c)(2), an individual may make an irrevocable election to receive benefits under this chapter by properly completing VA Form 22-1990, submitting a transfer-of-entitlement designation under this chapter to the Department of Defense, or submitting a written statement that includes the following: (i) identification information (including the name, social security number and address); (ii) if applicable, an election to receive benefits under chapter 33 in lieu of benefits under one of the applicable chapters listed in paragraph (c)(1)(i) of this section (e.g., 'I elect to receive benefits under the Post-9/11-GI Bill in lieu of benefits under the Montgomery GI Bill - Active Duty (chapter 30) program.'); (iii) the date the individual wants the election to be effective (e.g., 'I want this election to take effect on August 1, 2009.').  An election request for an effective date prior to August 1, 2009, will automatically be effective August 1, 2009; and (iv) an acknowledgement that the election is irrevocable (e.g., 'I understand that my election is irrevocable and may not be changed.'). 

The criteria listed under 38 C.F.R. §21.9520(c)(2) are disjunctive rather than conjunctive which means only one of the requirements under this provision must be met for irrevocability to occur.  See Drosky v. Brown, 10 Vet. App. 251, 255 (1997)(noting that the Board erred in reading a requirement as conjuctive rather than disjunctive as contemplated by the word "or" between two symptoms in the rating criteria at issue.); Johnson v. Brown, 7 Vet. App. 95, 97 (1994)(agreeing with VA's interpretation that the criteria in 38 C.F.R. § 4.132, DC 9411 (1994) for a 100% rating were each independent bases for granting such rating).  Thus, based on the above-referenced regulatory provisions, an election to receive benefits under Chapter 33 can become irrevocable upon completion and submission of a VA Form 22-1990.  In the alternative, a Veteran has the option to either submit a transfer-of-entitlement designation under this chapter to the Department of Defense, or submit a written statement which includes the four specified criteria listed under 38 C.F.R. §21.9520(c)(2)(i)-(iv) in order for irrevocability to occur.  If a Veteran has opted to submit a written statement, then his or her election to receive benefits under Chapter 33 becomes irrevocable only when all four specified criteria are met.

In this case, the irrevocability criteria listed under 38 C.F.R. § 21.9520(c)(2) have been met, as the record contains a fully completed electronic (online) application Form 22-1990.  Although this document does not contain an acknowledgement on the part of the Veteran reflecting awareness of the irrevocability criteria, the regulation does not explicitly impose this requirement on VA Form 22-1990.  Indeed, the regulation does not specify that a completed VA Form 22-1990 must include a statement from the Veteran acknowledging that his election for Post-9/11 GI Bill program in lieu of benefits under the MGIB program is irrevocable.  The regulation only requires that VA Form 22-1990 be properly completed for irrevocability to take effect.  In other words, acknowledgement by the Veteran that her election for Chapter 33 benefits in lieu of Chapter 30 benefits is irrevocable is only necessary when the Veteran has opted to submit a written statement seeking Chapter 33 benefits, as an alternative to properly completing the VA Form 22-1990 or submitting a transfer-of-entitlement designation under this chapter to the Department of Defense for these benefits. 

Moreover, the United States Court of Appeals for Veterans Claims (Court) has applied a presumption of regularity to all manner of VA processes and procedures. See Woods v. Gober, 14 Vet. App. 214, 220 (2000) (citing INS v. Miranda, 459 U.S. 14, 18 (1982); United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926).  Thus, VA's electronic application program is deemed to have been properly developed to comply with the legal requirements for these benefits, including the irrevocable election as required under 38 C.F.R. § 21.9520(c)(1)(i).  Further, a review of VA's website for filing the electronic application, http://www.gibill.va.gov, includes general information noting that the election for benefits under the Post-9/11 GI Bill is irrevocable.  See http://www.gibill.va.gov/documents/pamphlets/ch33_pamphlet.pdf.

Thus, the Board finds that the irrevocability requirements set forth under 38 C.F.R. § 21.9520(c)(2) have been met and that the Veteran did make an irrevocable election for educational benefits under the Post-9/11 GI Bill program when he completed the electronic (online) application.  As such, his election for Post-9/11 GI Bill benefits is irrevocable and cannot be rescinded.  

The Board regrets that the Veteran may have misunderstood the benefits available to him, but the Board is bound by the applicable law and regulations when determining a claim for VA benefits.  Regardless of the equities of the Veteran's situation, VA can only pay benefits that are authorized by law.  See McTighe v. Brown, 7 Vet. App. 29, 30 (1994) ("[P]ayment of government benefits must be authorized by statute; therefore, erroneous advice given by a government employee cannot be used to estop the government from denying benefits.").  It has been observed that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992) [citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)].  Thus, the Board has no discretion to afford benefits where basic eligibility is not established under the law. 


ORDER

Entitlement to educational assistance benefits under the provisions of Chapter 30, Title 38, United States Code is denied.



____________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs