Citation Nr: 1308631 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 10-40 559 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUE Entitlement to an effective date earlier than April 6, 2008, for the grant of educational assistance for members of the Selected Reserve (Chapter 1606 education benefits). ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The appellant had active duty for training from August 2007 to January 2008 and remains a member of the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) from an April 2010 decision issued by the Department of Veterans Affairs (VA) Regional Office and Education Center in Muskogee, Oklahoma (RO). FINDINGS OF FACT 1. The appellant completed his active duty training in January 2008. 2. The appellant enrolled in a certified course of study at an approved educational institution in January 2008. 3. The appellant initially submitted an application for Selected Reserve Educational Assistance on April 6, 2009. CONCLUSION OF LAW The criteria for the payment of Selected Reserve Educational Assistance benefits prior to April 6, 2008, have not been met. 10 U.S.C.A. § 16136(b); 38 U.S.C.A. §§ 3672, 5107; 38 C.F.R. §§ 21.1029, 21.7631(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant contends that his Selected Reserve educational benefits should have been awarded effective in January 2008, when he began an approved course of study, and when he was told by the Defense Department that he was eligible to begin receiving such educational benefits. Duties to notify and assist When an application for education benefits is received, VA has certain notice and assistance requirements under the law. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 21.1031, 21.1032. First, proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must: (1) inform the claimant about the information and evidence not of record necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Additionally, the VA is responsible for providing any required forms along with instructions for completing such forms. In this case, the appellant was provided this information in a letter of April 2009. He was provided with the text of the applicable laws and regulations along with a complete explanation as to the denial of his claim for an earlier effective date in an August 2010 Statement of the Case. All identified evidence has been obtained. All relevant records and contentions have been carefully reviewed. The Board therefore concludes that the VA's duties to notify and assist have been met with regard to the matter decided herein. Standard of review Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "an appellant need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation. See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 56 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Analysis The Montgomery GI Bill-Selected Reserve program (Chapter 1606, of Title 10, United States Code) is an educational assistance program enacted by Congress for members of the Selected Reserve of the Army, Navy, Air Force, Marine Corps, and Coast Guard, and the Army and Air National Guard. The Reserve components decide who is eligible for the program, and VA administers the program. Chapter 1606 assists eligible persons to further their education after high school, providing educational assistance for people enrolled in approved programs of education or training. 38 C.F.R. §§ 21.7520, 21.7540. It is the first such program that does not require service in the active Armed Forces in order to qualify. Educational benefits under the Selected Reserve Educational Assistance program begin after the service member has completed the initial period of active duty for training. 10 U.S.C.A. § 16132. According to his DD Form 214, the appellant completed his initial period of active duty for training on January 19, 2008. The appellant enrolled at the University of Houston, an approved educational institution, and started taking college courses which had been certified by VA in January 2008. He submitted his application for Selected Reserve educational assistance to the VA on April 6, 2009. There was some confusion in processing his claim initially. It was unclear which educational program he was applying under, and the VA did not have a copy of his high school diploma. After these problems were resolved with the appellant's assistance and cooperation, his application for educational assistance was approved, effective April 6, 2008, exactly one year prior to the receipt of his application for educational assistance. Governing law provides that the VA is the entity responsible for administering the Selected Reserve Educational Assistance program on behalf of the Department of Defense. 10 U.S.C.A. § 16136. Under these regulations it is explicitly stated that VA will determine the commencing date of an award of educational assistance. 38 C.F.R. § 21.7631. In particular, when an eligible reservist enters into training, and the award is the first award of educational assistance, the commencing date of the award is the latest of i) the date the educational institution certifies, ii) one year prior to the date of claim as determined by 38 C.F.R. § 21.1029(b), or iii) the effective date of the approval of the course, or one year before the date VA receives the approval notice, whichever is later. 10 U.S.C.A. § 16136(b); 38 U.S.C.A. § 3672; 38 C.F.R. § 21.7631(a). For the purpose of determining the commencing date of an award for educational assistance, the "date of claim" is defined as the date on which a valid claim or application for educational assistance is considered to have been filed with VA. 38 C.F.R. § 21.1029. In this case, the latest of these three dates is the second one: one year prior to the April 2009 claim. The appellant contends that he was informed by the Department of Defense that he was eligible for assistance in January 2008, the date he completed his initial period of active duty for training. The record reflects that he was informed of this eligibility by both the Department of Defense and VA. However, he failed to submit a claim for such assistance until April 2009, sixteen months after he completed his active duty training and after he had begun taking college classes. The appellant is correct in his statement that he was in fact eligible for Selected Reserve educational assistance as of January 2008, and he is also correct that he was so informed by the Department of Defense. However, eligibility does not equate to entitlement in this case. He was not entitled to Selected Reserve educational assistance until he filed a claim and submitted his bona fides to establish his entitlement. In this case, he filed a claim which established his entitlement in April 2009. A liberalizing provision in the VA law and regulations allowed VA to pay his educational benefits one year prior to the date of his claim. Although the Board can sympathize with the pressures upon the appellant, simultaneously pursuing a college education and being a member of the National Guard, there is no leniency in the law to allow payment of the additional four months of educational benefits which he seeks. Because he failed to submit a timely application for such benefits, he cannot be reimbursed for his educational costs prior to April 6, 2008. As the governing regulation provides, the commencing date of the appellant's educational assistance must be the latest of the various enumerated possibilities. 38 C.F.R. § 21.7631(a). In this case, the latest of the dates is April 6, 2008, one year prior to the date of the appellant's claim for the benefit sought. The appeal must therefore be denied. ORDER Selected Reserve educational assistance prior to April 6, 2008, is denied. ____________________________________________ Mark W. Greenstreet Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs