Citation Nr: 1313810 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 10-47 090A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Educational Center in Muskogee, Oklahoma THE ISSUE Entitlement to a higher rate of monthly housing stipend for the period August 2010 to December 2010, as ancillary to the Veteran's Post-9/11 educational award. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from January 2006 to January 2010, including combat service in Iraq, and his decorations include the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) and Educational Center in Muskogee, Oklahoma. FINDING OF FACT The monthly housing stipend paid to the Veteran for the fall semester August 2010 to December 2010, as an ancillary benefit to his Post-9/11 educational award, was equal to the rate for basic allowance for housing (BAH) set by the Department of Defense (DoD) for an active duty service member holding an E5 rank and with one or more dependents ("E5 with dependents"). CONCLUSION OF LAW A higher rate of monthly housing stipend for the period August 2010 to December 2010 as an ancillary benefit to the Veteran's Post-9/11 educational award is not warranted. 37 U.S.C.A. § 403 (West 2002); 38 U.S.C.A. § 3313 (West 2002 & Supp. 2012); 38 CFR 21.9640 (2012); 74 Fed. Reg. 14,654 (Mar. 31, 2009). REASONS AND BASES FOR FINDING AND CONCLUSIONS Because 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 (2002). The relevant statute for the Post-9/11 GI Bill, 38 U.S.C.A. § 3313, directs that the dollar amount of the monthly housing stipend paid per month for Post-9/11 GI Bill beneficiaries shall be equal to the BAH rate set by DoD that is paid to an active duty E5 with dependents. 38 CFR 21.9640 (b) (ii) (2012). Based on the zip code of the Veteran's educational institution, Orange Coast College, the 2009 monthly BAH amount for that area was $2,152.00, and the 2010 BAH amount for that area was $2,052.00. See generally Department of Defense BAH Calculator, available at https://www.defensetravel.dod.mil/site/bahCalc.cfm (last visited April 22, 2013). The Veteran was separated from service in early January 2010. As an ancillary benefit to his Post-9/11 GI Bill educational benefits, the monthly housing stipend was paid at the 2009 BAH rate for the spring semester January 2010 to May 2010, and at the 2010 BAH rate for the fall semester from August 2010 to December 2010. The Veteran has asserted that VA should continue to pay his housing stipend at the 2009 rate, citing the "individual rate protection" clause of 37 U.S.C.A. § 403 (b) (6) which essentially prohibits reduction of a BAH rate as long as the active duty service member remains in the same geographic location, and is not demoted or has a change in family status (i.e. no longer having dependents). 37 U.S.C.A. § 403 (b) (6). From a policy perspective, he also pleads that since he relied on the 2009 monthly housing stipend rate when signing a rental lease, and he is still responsible for that monthly rental amount until the lease terminates, it is unfair for VA to reduce his monthly housing stipend. After exhaustive review of the relevant code sections, regulations, and legislative history, the Board finds that continued payment of the higher rate of monthly housing allowance is not warranted. While VA regulations refer to 37 U.S.C.A. § 403 to determine the specific housing stipend rate for each educational institution's area, they also indicate that it will be "equal to" the monthly amount of the basic allowance for housing payable under 37 U.S.C.A. § 403. Thus, the VA benefit and the DoD benefit are contemplated as equal, but separate and distinct, dollar amounts; the reference made to DoD regulations by the relevant VA regulation is only to determine the specific amount, not to infer any other benefit on the educational beneficiary set forth in those regulations that are intended to address the housing benefit awarded to active duty members. Further, the Board finds that the "individual rate protection" cited by the Veteran does not apply to his case. The language of 37 U.S.C.A. § 403, both in sections (a) and (b), specifically indicates that it only applies to service members, in noting that basic entitlement to such a benefit is available to "a member of a uniformed service who is entitled to basic pay." 37 U.S.C.A. § 403 (a). As of January 2010, the Veteran was no longer a "member of the uniformed service" as he was no longer on active duty. Thus, VA is only required to pay the educational beneficiary a monthly housing stipend amount "equal to" the amount set forth by DoD for the claimant's educational institution's zip code. 38 U.S.C.A. § 3313 (c) (1) (B) (i) (2012); see also 74 Fed. Reg. 14,654 (Mar. 31, 2009). It is not clear whether the Veteran was paid a higher rate for the first semester of 2010 because he was still on active duty as of January 1, 2010, or whether VA simply erred in not paying the monthly housing stipend rate that went into effect on January 1, 2010 due to oversight. Regardless, VA's action with respect to the spring semester, January 2010 to May 2010, does not create an entitlement to a higher rate of monthly housing stipend for any subsequent period. In denying this claim, the Board again acknowledges the Veteran's valorous combat service in Iraq and the unfortunate circumstances of this case. His policy arguments essentially constitute a theory of equitable relief. Although the Board denies this claim, it is sympathetic to his appeal, it is without authority to grant this claim on an equitable basis and instead is constrained to follow the specific provisions of law. See 38 U.S.C.A. § 7104 (West 2002); Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). ORDER A higher rate of monthly housing stipend for the period August 2010 to December 2010, as ancillary to the Veteran's Post-9/11 educational award, is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs