Citation Nr: 1311879 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 10-46 666 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to educational assistance benefits under the provisions of Chapter 30, Title 38, United States Code (Montgomery GI Bill). 2. Entitlement to educational assistance benefits under the provisions of Chapter 32, Title 38, United States Code (Post-Vietnam Era Veteran's Educational Assistance Program). ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1962 to February 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the Veteran's request for a laptop computer and educational training on the basis of the Montgomery GI Bill (MGIB) and the Post-Vietnam Era Veteran's Educational Assistance Program (VEAP). FINDINGS OF FACT 1. The Veteran's only period of active duty service was from June 20, 1962 to February 18, 1966. 2. The Veteran did not enter active duty as a member of the Armed Forces after June 30, 1985. 3. The Veteran did not first enter active duty as a member of the Armed Forces between December 31, 1976 and July 1, 1985. CONCLUSIONS OF LAW 1. The criteria for entitlement to educational assistance under the provisions of Chapter 30, Title 38, United States Code for MGIB benefits have not been met. 38 U.S.C.A. § 3011 (West 2002); 38 C.F.R. § 21.7042 (2012). 2. The criteria for entitlement to educational assistance under the provisions of Chapter 32, Title 38, United States Code for VEAP benefits have not been met. 38 U.S.C.A. § 3221 (West 2002); 38 C.F.R. § 21.5040 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In August 2010, the RO issued a Statement of the Case (SOC) which included a discussion of the facts of the claim, notification of the basis of the decision and a summary of the evidence used to reach that decision. The Board finds that the Veteran was fully advised of the evidence needed to substantiate his claim and that all relevant evidence necessary for an equitable disposition of the appeal has been obtained. Although such post-decisional notice does not satisfy VA's duties to notify and assist, it should have put the Veteran on notice of what was needed to substantiate the claim. The Veteran has had more than two years since the SOC to submit additional evidence and argument and to request a hearing. While the Veteran has not received notification of VA's duties to notify and assist, these requirements do not apply to education cases. See 38 C.F.R. §§ 21.1031, 21.1032; see also 38 C.F.R. § 21.7030 (specifically applying the provisions of subpart B and 38 C.F.R. § 21.1031 to claims for educational assistance under Chapter 30) and 38 C.F.R. § 21.5030 (specifically applying the provisions of 38 C.F.R. § 21.1031 to claims for educational assistance under Chapter 32). Further, the VA General Counsel has held that VA's notice and duty to assist provisions are inapplicable where, as here, undisputed facts render a claimant ineligible for the benefit claimed and further factual development could not lead to an award. See VAOPGCPREC 5-2004 (June 23, 2004). As the application of the law to the undisputed facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is necessary. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Manning v. Principi, 16 Vet. App. 534, 542 (2002); see also Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Educational Assistance Chapter 30 of Title 38, U.S. Code for MGIB benefits sets forth provisions to allow for educational assistance for members of the Armed Forces after their separation from military service. See 38 U.S.C.A. §§ 3001-21. VA will pay MGIB benefits to an eligible veteran while he is pursuing approved courses in a program of education. 38 C.F.R. § 21.7130. A threshold requirement for MGIB benefits is the completion of certain requisite service. See 38 U.S.C.A. § 3011. In order to be entitled to MGIB benefits, an individual must first become a member of the Armed Forces or first enter active duty as a member of the Armed Forces after June 30, 1985 and in the case of an individual whose obligated period of active duty is three years or more, serve at least three continuous years of active duty. See 38 U.S.C.A. § 3011(a); 38 C.F.R. § 21.7042(a). Chapter 32 of Title 38, U.S. Code for VEAP benefits sets forth provisions to allow for educational assistance for members of the Armed Forces after their separation from military service. See 38 U.S.C.A. §§ 3201-43. A threshold requirement for VEAP benefits is the completion of certain requisite service. 38 U.S.C.A. § 3221. In order to be entitled to VEAP benefits, an individual must first become a member of the Armed Forces or first enter active duty as a member of the Armed Forces after January 1, 1977 and before July 1, 1985, but not be eligible under Chapter 34 of Title 38, U.S. Code, and must have served at least 181 days of active duty or have been discharged from active duty for a service-connected disability. 38 U.S.C.A. § 3202. The individual must enroll in the educational benefits program during the period of active duty and participate for at least 12 consecutive months. 38 U.S.C.A. § 3221. A person electing to participate in the program shall agree to have a monthly deduction made from his or her military pay. See 38 U.S.C.A. §§ 3221, 3222; 38 C.F.R. §§ 21.5040, 21.5052. The Veteran claims that his active duty service from June 20, 1962 to February 18, 1966 qualifies him for educational benefits under the provisions of Title 38, Chapters 30 and 32, United States Code for MGIB benefits and VEAP benefits. The Veteran entered active service in June 1962. Therefore, he does not meet the eligibility requirements for Chapter 30 MGIB benefits since he did not become a member of the Armed Forces after June 30, 1985. 38 U.S.C.A. § 3011(a)(1)(A). Likewise, the Veteran does not meet the initial eligibility requirements for Chapter 32 VEAP benefits since he did not enter active duty as a member of the Armed Forces between December 31, 1976 and July 1, 1985. 38 U.S.C.A. § 3221(a). The Veteran's contentions with respect to his eligibility have been sympathetically considered but the applicable law and regulations as written preclude a grant of benefits, even on an equitable basis. See 38 U.S.C.A. § 503; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board is without the authority to disregard the applicable law. Congress did not enact any exceptions to the above-discussed legal provisions that would permit a grant of the requested educational benefits. 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). ORDER Entitlement to educational assistance under Chapter 30, Title 38, United States Code for MGIB benefits is denied. Entitlement to educational assistance under Chapter 32, Title 38, United States Code for VEAP benefits is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs