Citation Nr: 1311075 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 12-10 189 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to eligibility for and payment calculation of educational assistance benefits under Chapter 33, Title 38, United States Code. 2. Whether an overpayment of educational assistance benefits under Chapter 33, Title 38, United States Code, was properly created. 3. Entitlement to extension of educational assistance benefits pursuant Chapter 30, Title 38, United States Code. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant, J.W. ATTORNEY FOR THE BOARD G. A. Wasik, Counsel INTRODUCTION The Veteran had active service from July 1996 to June 1997 and from May 2001 to March 2005. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of June 2011 by the Department of Veterans Affairs (VA) Buffalo, New York, Regional Office (RO). This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The appellant has requested equitable relief under the provisions of 38 U.S.C.A. § 503 (West 2002 & Supp. 2012). A grant of equitable relief is solely within the discretion of the Secretary of the Department of Veterans Affairs. It is not within the Board's jurisdiction. See Darrow v. Derwinski, 2 Vet. App. 303 (1992). The request will be referred to the Chairman of the Board for consideration after this decision of the Board has been issued. See 38 C.F.R. § 2.7 (2012) The issue of whether an overpayment of educational assistance benefits the under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill), was properly created is remanded to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. The Veteran was obligated to perform his period of military service from May 2001 to March 2005 based on his attendance at the United States Naval Academy (USNA). 2. The Veteran's military service from May 2001 to March 2005 does not qualify as "active duty" service for purposes of eligibility for education benefits under the Post-9/11 GI Bill. 3. The actions taken by VA regarding the Veteran's entitlement to education benefits under the Post-9/11 GI Bill did not induced or trick the Veteran into allowing the filing deadline to pass for filing for educational assistance benefits pursuant to Chapter 30, Title 38, United States Code (MGIB). CONCLUSIONS OF LAW 1. The criteria for eligibility for receiving educational assistance benefits under the provisions of the Post-9/11 GI Bill have not been met. 38 U.S.C.A. §§ 3301, 3311 (West 2002 & Supp. 2012); 38 C.F.R. §§ 21.9505, 21.9520 (2012). 2. The criteria for extension of the time limits for the Veteran's use of educational benefits under the MGIB, to include as based on a claim of equitable tolling, have not been met. 38 U.S.C.A. § 3031 (West 2002 & Supp. 2012); 38 C.F.R. § 21.7051 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the Veteran has been accorded appropriate due process with regard to the claims adjudicated by this decision. The Veteran was sufficiently advised in the initial June 2011 letter from VA informing him that his education benefits had been discontinued and in the subsequent March 2012 statement of the case. See 38 C.F.R. § 21.1031 (2012). The Veteran presented argument in his July 2011 notice of disagreement, during his June 2012 hearing before the Board, and in other communications received by VA. The Veteran has demonstrated sufficient knowledge as to the reasons his claims were denied. Moreover, the duty to assist the Veteran with these claims have been met. See 38 C.F.R. § 21.1032 (2012). All necessary federal and private documentation regarding the claim have been obtained. See also 38 C.F.R. § 21.1032(d). The evidence of record established that the Veteran received his commission in the United States Navy after graduating from USNA in May 2001, and was obligated to a period of service from May 2001 to May 2006. See 10 U.S.C.A. § 6956 (West 2002). The Veteran was discharged from the United States Navy in March 2005, under separation code "LFF" (directed by service authority). The Veteran was advised in November 2005 that he was eligible for educational assistance benefits under MGIB. According to the Veteran, he used the MGIB for one semester at Georgetown University before executing an irrevocable election to receive educational assistance benefits under the Post-9/11 GI Bill. In May 2009, the Veteran was advised that he was eligible for educational assistance benefits under the Post-9/11 GI Bill, effective August 1, 2009. The Veteran used these educational assistance benefits to pursue and complete graduate studies at Georgetown University and Oxford University. While still attending Oxford, the Veteran was informed in June 2011, that he was erroneously granted eligibility for educational assistance benefits under the Post-9/11 GI Bill. The Veteran was informed that his period of active duty from May 2001 to March 2005 rendered him ineligible to receive Post-9/11 GI Bill educational benefits because this period of active duty resulted from an obligated period of active service given his status as a service academy graduate. See 10 U.S.C.A. § 6956. The Veteran was notified of this decision and provided his appellate rights. He perfected this appeal. VA correspondence dated in April 2011 and June 2011, indicated that this error resulted in overpayments to the Veteran in the amounts of $404.65 during October 2010; $51,544.33 from August 2009 to April 2011; $2,697.68 during May 2011; and $60,507.58 from August 2009 to August 2011. The Veteran acknowledged in his April 2012 substantive appeal and testimony at a hearing before the Board in June 2012 that some of the monies in question were re-issued to him or to Oxford University after he was initially found ineligible to receive Post-9/11 GI Bill education benefits. In November 2012, an audit of the Veteran's educational benefits payments was made. VA determined the exact amount of benefits the Veteran received while at Georgetown and Oxford was $60,507.58, and further noted that the entire overpayment had been cleared by VA because it was determined that the payments were the result of VA administrative error and the overpayment was waived. Neither the schools nor the Veteran were required to repay VA any of the funds they erroneously received. As such, VA determined that there was no current overpayment on record with regard to the Veteran. In response to the RO's audit, the Veteran advanced an argument as to why he should have received greater payments under the Post-9/11 GI Bill, based on his calculations as to how his class work at Oxford should have been quantified. Initially, the Veteran was never entitled to educational assistance benefits under the Post-9/11 GI Bill based on his military service. His initial period of military service was from July 1996 to June 1997. As this period of service is prior to September 10, 2001, the Veteran does not meet the basic eligibility requirements for the Post-9/11 GI Bill based on this period of service. 38 U.S.C.A. § 3311(b)(1)(A). The Veteran's second period of military service is from May 2001 to March 2005. The period of service from September 11, 2001 to March 2005 satisfies one of the criteria for establishment of entitlement to Post-9/11 GI Bill education benefits as it occurred subsequent to September 10, 2001. However, the Veteran's period of military service from September 11, 2001 to March 2005 does not constitute "active duty" service for purposes of determining entitlement to education benefits under the Post-9/11 GI Bill. See 38 U.S.C.A. § 3311. The definition of "active duty" under the statute provides that certain periods of service are prohibited from being considered as a part of the period of active duty on which an individual's entitlement to educational assistance is based. Id. One of the periods of military service specifically excluded from consideration of "active duty" is any period of service required by an officer pursuant to an agreement under 10 U.S.C.A. § 6959. 38 C.F.R. § 21.9505(3)(ii). The Veteran attended USNA and, as a result of this education, was obligated to serve a period of military service as directed by 10 U.S.C.A. § 6959. This obligated period of service was from May 2001 to May 2006. As the Veteran's military service from 2001 to 2005 is expressly excluded as being considered "active duty" for purposed of education benefits under the Post-9/11 GI Bill, the original grant of those benefits was in error. The Veteran was never entitled to these benefits as he does not have the requisite active duty service. The Veteran maintains that his military service from May 2001 to March 2005 still qualifies him for entitlement to benefits under the Post-9/11 GI Bill based on the discharge he received in March 2005. The Veteran argued that the discharge code on his DD Form 214, "LFF," qualifies him for the education benefits because he was involuntarily released from active duty due to a service-connected disability. The Veteran asserted in his notice of disagreement that his obligated period of service is subordinate to his involuntary release as established by 38 C.F.R § 21.9510(a) (2012). 38 C.F.R § 21.9510 pertains to "Claims, VA's duty to assist, and time limits," without a paragraph (a), and which does not support these arguments. However, 38 C.F.R. § 21.9520(a) provides that basic eligibility for Post-9/11GI Bill education benefits may be established based on military service of a minimum of 90 aggregate days excluding entry level and skill training and, after completion of such service - (1) Continues on active duty; (2) Is discharged from service with an honorable discharge; (3) Is released from service characterized as honorable and placed on the retired list, temporary disability retired list, or transferred to the Fleet Reserve or the Fleet Marine Corps Reserve; (4) Is released from service characterized as honorable for further service in a reserve component; or (5) Is discharged or released from service for - (i) A medical condition that preexisted such service and is not determined to be service-connected; (ii) Hardship, as determined by the Secretary of the military department concerned; or (iii) A physical or mental condition that interfered with the individual's performance of duty but was not characterized as a disability and did not result from the individual's own misconduct. 38 C.F.R. § 21.9520(a). The Veteran's argument is without merit. The initial paragraph of 38 C.F.R. § 21.9520 provides that an individual may establish eligibility for basic educational assistance under the Post-9/11 GI Bill, based on active duty service after September 10, 2011. The regulations mandate that, for purposes of administering and payment of Post-9/11 GI Bill educational assistance, a specific definition of "active duty" must be used. 38 C.F.R. § 21.9505. This definition of active duty, as set out above, specifically excludes the Veteran's military service which was required as a result of his attending the United States Naval Academy. As the Veteran's military service never qualified as "active duty" service under 38 C.F.R. § 21.9505, he did not meet the initial criteria for determining basic eligibility as set out in the first paragraph under 38 C.F.R. § 21.9520. The character of the Veteran's discharge reported on his separation document does not change the outcome of the Board's decision based on the current fact pattern. The discharge from this period of service does not, in any way, change the nature of the Veteran's service from that required by his attendance at USNA and as required by 10 U.S.C.A. § 6959. The Veteran has argued that, H.R. 2642-56 § 3324(c)(1)(A)(i) establishes his right as a MGIB beneficiary to elect participation in the Post-9/11 GI Bill. He asserts that, by virtue of the fact that he irrevocably relinquished his rights under MGIB and that he met the basic eligibility requirements criteria described in "38 C.F.R. § 21.9510 [sic]" (a) and (c)(1), this certifies his eligibility for the Post-9/11 GI Bill education benefits. This argument is without merit. Again, the initial requirement for application of 38 C.F.R. § 21.9520 to determine basic eligibility for Post-9/11 GI Bill educational benefits is that the Veteran have "active duty" service as defined by 38 C.F.R. § 21.9505. As the Veteran's military service from May 2001 to March 2005 does not satisfy this definition of active duty, the Veteran does not meet the initial eligibility requirements set out under 38 C.F.R. § 21.9520. His irrevocable election to receive Post-9/11 GI Bill education benefits under 38 C.F.R. § 21.9520 cannot, in any way, change the fact that his military service did not qualify as active duty service as defined by 38 C.F.R. § 21.9505. The Veteran has argued that the earliest that his payments for benefits under the Post-9/11 GI Bill could be terminated was September 21, 2011, under the provisions of 38 C.F.R. § 21.9635. This regulation pertains to discontinuance dates for Post-9/11 GI Bill educational assistance and provides that, when an administrative error or error in judgment by VA is the sole cause of an erroneous award, the award will be reduced or terminated effective the date of last payment. 38 C.F.R. § 21.9635(r) (2012). In the current situation, this has occurred. VA determined that the Veteran was wrongly paid benefits to which he was not entitled. VA then correctly terminated the benefits. The law cited by the Veteran does not, in any way, allow VA to grant him the additional monetary benefits he is seeking in addition to the benefits he has already received and to which under the law, he had no entitlement. Based on the above, the Veteran's military service never satisfied the definition of "active duty" as set out under 38 C.F.R. § 21.9505. As such, his receipt of any educational benefits under the Post-9/11 GI Bill was in error, as he never met the basic eligibility requirements set out under 38 C.F.R. § 21.9520. The Veteran has acknowledged that his receipt of benefits under the Post-9/11 GI Bill was in error. Despite this acknowledgement, the Veteran claims that he is actually due an additional $30,844.60 from VA under the Post-9/11 GI Bill. The Veteran is requesting VA to release additional funds at the "correct rate," meaning he wants VA to issue additional funds to him under the Post-9/11 GI Bill based on his calculations of what should have been paid to him under the Post-9/11 GI Bill. The Veteran argues that during the time when he received Post-9/11 GI Bill benefits, VA incorrectly determined the amount of money due under the Post-9/11 GI Bill. The Veteran has submitted extensive argument questioning VA's evaluation of how to measure his course work at Oxford. The Board finds no merit in these arguments. The "correct rate" for payment of benefits to the Veteran under the Post-9/11 GI Bill is zero. As set out above, the Veteran did not meet the basic eligibility requirements for entitlement to Post-9/11 GI Bill benefits, at any time, based on his military service. All payments the Veteran received under the provisions of the Post-9/11 GI Bill were completely in error. VA has not required the Veteran to repay the approximately $60,000.00 which was wrongfully disbursed to him as VA determined the monies were disbursed under an administrative error. For VA to disburse further funds would be 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." See Office of Personnel Mgmt. v. Richmond, 496 U.S. 414, 426, 110 L. Ed. 2d 387, 110 S. Ct. 2465 (1990). The Veteran argues that 38 C.F.R. § 21.9505(3)(ii), which defines "active duty" service to exclude any period of service required by an officer pursuant to an agreement under 10 U.S.C.A. § 6959, was promulgated in July 2009 and he was certified as 100% eligible for Post-9/11 GI Bill benefits as of May 2009. The Board finds the Veteran's argument is without merit. The statute enacting the Post-9/11 GI Bill has an effective date of June 30, 2008. See Pub. L. 110-252, Title V, § 5003(a)(1), June 30, 2008, 122 Stat. 2359. This law includes section 38 U.S.C.A.§ 3311(d)(2), which specifically excludes service pursuant to an agreement under 10 U.S.C.A.§ 6959 from qualifying as "active duty" service for purposes of entitlement to educational assistance under the Post-9/11 GI Bill. The law was in effect prior to the Veteran's initial and erroneous determination of entitlement. The Veteran's representative argued in a February 2013 statement that the Veteran was treated differently from Oxford University when VA issued a check to Oxford University subsequent to the time the Veteran was informed that he had not entitlement to education benefits under the Post-9/11 GI Bill. VA issued the check to Oxford University for monies owed, subsequent to the time it determined the Veteran was not eligible for the benefits because VA determined that administrative error had been committed on its part without any fault on the part of Oxford University. The fact that VA issued Oxford University a check after the Veteran's eligibility for the benefits had been denied, does not change the outcome of this decision. The Veteran is not now and never was entitled to the monies he received under the Post-9/11 GI Bill. The Veteran is also not entitled to any additional monies under the Post-9/11 GI Bill. The Veteran claims that promissory estoppel compels VA to honor the terms of the original agreement regarding his participation in the Post-9/11 GI Bill program. The Veteran argues that when VA informed him he was entitled to Post-9/11 GI Bill benefits, he relied on this promise and obtained additional funding in connection with his schooling at Oxford University. He claims entitlement to compensation based on his reliance on VA's promise to fund his education and has cited to the doctrine of estoppel as a foundation for why VA should disburse additional funds to him under the Post-9/11 GI Bill. The Board finds this argument is without merit. Even if the Veteran relied on VA's representations to his detriment, equitable estoppel is not available under these circumstances against the United States for the actions or representations of an agent of the United States, even if false or incorrect, as funds may not be expended that have not been appropriated by Congress according to law. Payments of money from the Federal Treasury are limited to those authorized by statute, and erroneous advice given by a Government employee cannot estop the Government from denying benefits not otherwise permitted by law. Office of Personnel Management v. Richmond, 496 U.S. 414, 419-34 (1990); see 38 U.S.C.A. § 503. VA benefits exist solely as a matter of positive law; where Congress has not authorized a benefit by statute, no benefit may be awarded. See Morton v. West, 12 Vet. App. 477, 485 (1999) ("In the American system, government functionaries are entitled to exercise only such powers as are conferred on them, expressly or impliedly, by positive law.") (Internal quotation marks omitted.). Even if a VA employee has failed in his fiduciary duty to a claimant, the United States Court of Appeals for Veterans Claims is precluded from awarding benefits on the basis of equitable estoppel. See Daniels v. Gober, 10 Vet. App. 474, 480 (1997); Shields v. Brown, 8 Vet. App. 346, 351 (1995); Owings v. Brown, 8 Vet. App. 17, 23 (1995); see also Harvey v. Brown, 6 Vet. App. 416, 424 (1994) ("the remedy for breach of such an alleged obligation [to provide a claimant with accurate benefit information] cannot involve the payment of benefits where the statutory eligibility requirements for those benefits are not met."). As the United States Court of Appeals for the Federal Circuit remarked: Although equitable estoppel is available against the government, it is not available to grant a money payment where Congress has not authorized such a payment or the recipient doesn't qualify for such a payment under applicable statutes. See Office of Personnel Mgmt. v. Richmond, 496 U.S. 414, 426, 110 L. Ed. 2d 387, 110 S. Ct. 2465 (1990). McCay v. Brown, 106 F.3d 1577, 1581-82 (1997). The Veteran has requested that VA clarify his entitlement to benefits under the MGIB. In June 2011, VA informed the Veteran that he had used 8 months and 24 days of benefits under the MGIB. In its November 2012 remand, the Board referenced the fact that the Veteran had used 8 months and 24 days of benefits under the MGIB and also informed the Veteran that he had 20 months and 17 days of entitlement remaining under the MGIB. The Veteran was also provided with this information in an August 2012 supplemental statement of the case. The Veteran has requested that his educational entitlement under the MGIB be extended by the number of days elapsed from June 2011 to the date the current appeal concludes. He asserts that he had no clarity on the status of his educational benefits for a year and a half. The Veteran argues this is lost time and he wants it back to use his benefits. The law provides that an extended period of eligibility for MGIB benefits may be granted when it is determined that a veteran was prevented from initiating or completing the chosen program of education within the otherwise applicable eligibility period because of a physical or mental disability that did not result from the Veteran's willful misconduct. 38 U.S.C.A. § 3031(d); 38 C.F.R. § 21.7051(a)(2). It must be clearly established by medical evidence that such a program of education was medically infeasible. In this case, the Veteran does not assert that he was prevented from initiating or completing the chosen program of education within the otherwise applicable eligibility period because of a physical or mental disability. The Veteran is asking that his educational benefits be extended based on his litigation with VA over payment of benefits under the Post-9/11 GI Bill. The Board has considered the doctrine of equitable tolling. The doctrine of equitable tolling does not apply to jurisdictional requirements. See Bowles v. Russell, 551 U.S. 205, 214 (2007) (holding hold that 38 U.S.C.A. § 7266(a) was a jurisdictional statute and therefore the Court of Appeals for Veterans Claims did not have authority to equitably toll the time period for filing a notice of appeal). The United States Supreme Court, however, recently found that the 120-day period for appealing a Board decision to the Court of Appeals for Veterans Claims is not jurisdictional, but rather a claim processing rule that does not have jurisdictional consequences. Henderson v. Shinseki, 131 S.Ct. 1197 (2011). The Board finds that the pertinent law which limits entitlement to MGIB benefits to a ten year period, which begins on the date of the individuals last discharge or release from active duty, is not a jurisdictional requirement but rather a claim processing rule, which established the time limits within which the benefits must be used. 38 U.S.C.A. § 3031. Thus, equitable tolling must be considered. The application of equitable tolling within the context of Veterans law stems from Irwin v. Department of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), wherein the Supreme Court held that equitable tolling may be applied to toll a statute of limitations "where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass." The Supreme Court held that there is a rebuttable presumption that all federal statutes of limitations contain an implied equitable tolling provision. Id. In the current case, the Veteran's entitlement to benefits under the MGIB did not involve the filing of a defective pleading during the statutory period. Furthermore, the Board finds that the Veteran was not induced or tricked by VA's misconduct into allowing a filing deadline to pass. VA granted benefits erroneously to the Veteran. There is absolutely no indication that that any misconduct on the part of VA personnel allowed the filing of a deadline to pass. The Board finds that an administrative error by VA does not rise to the level of misconduct on the part of VA. Misconduct implies bad faith or affirmative action or inaction, with malice or other ill will. The Board finds no such evidence in this case. Equitable tolling has been expanded to apply not only where the claimant has been "induced or tricked by his adversary's misconduct" but also where his or her "failure to file was the direct result of a mental illness that rendered him or her incapable of 'rational thought or deliberate decision making.'" Barrett v. Principi, 363 F.3d 1316 (2004). As indicated above, the Veteran has not alleged that he had a mental illness that precluded him from rational thought or deliberate decision making. Based on the above, the Board finds that the Veteran's request for equitable tolling of the dates of his entitlement to his MGIB education benefits must be denied. ORDER Entitlement to Post-9/11 GI Bill education benefits is denied. Entitlement to extension of educational assistance benefits pursuant MGIB is denied. REMAND In a February 2013 statement, the Veteran's representative noted the Veteran had been informed that an overpayment of housing benefits of $404.65 was created and this amount was subsequently recouped in an April 21, 2011 payment. Despite the fact that the representative admits there is no current overpayment actions against the Veteran, he argues that the Veteran should have been provided with proper notification of the $404.65 overpayment and should have been provided with an opportunity to contest the existence of the overpayment and/or to request a waiver of the overpayment. The Board finds the issue of entitlement to waiver of overpayment of $404.65, to include the issue of whether the debt was properly created, must be remanded to afford the Veteran due process rights and an opportunity to contest the overpayment. Accordingly, the case is remanded for the following action: 1. The Veteran must be informed of the $404.65 overpayment for housing benefits and of his procedural and appellate rights regarding contesting overpayment claims. 2. Thereafter, the RO must ensure that the development above has been completed in accordance with the remand instruction and undertake any other development and/or procedural action that is deemed warranted. 3. This appeal has been advanced on the Board's docket. Expedited handling is required. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument as to this issue while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs