Citation Nr: 1321620 Decision Date: 07/05/13 Archive Date: 07/12/13 DOCKET NO. 10-08 360A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to Department of Veterans Affairs educational assistance benefits under 38 U.S.C. Chapter 30 (Montgomery GI Bill benefits). REPRESENTATION Veteran represented by: Armed Forces Service Corporation ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The Veteran had active duty service in the United States Army from November 1996 to February 1998. This matter comes before the Board of Veterans' Appeals, hereinafter the Board, on appeal from a determination by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Buffalo, New York. In his February 2010 substantive appeal, the Veteran requested a Board hearing, which was scheduled in November 2010. He pointed out that he was incarcerated but that it might be possible to conduct a hearing by telephone. He subsequently reported that this would not be possible. Prior to the date of the hearing, the Veteran cancelled his hearing request and he has not requested that another hearing date be scheduled. In October 2010, the Veteran appointed the National Veterans Legal Services Program (NVLSP) as his accredited representative. However, in December 2011, the NVLSP filed a motion to withdraw as his representative, which was granted by the Board in May 2012. That same month, the Veteran was notified that the NVLSP was no longer recognized as his representative and given the opportunity to appoint another representative. In June 2012, the Veteran appointed the Armed Forces Services Corporation as his representative. In July 2012, the Board remanded the appeal. The claim has since been returned to the Board for appellate review. FINDINGS OF FACT 1. The Veteran served on active duty in the US Army from November 18, 1996, to February 1, 1998. He has neither contended nor shown that he had any qualifying active service after that period. 2. The Veteran's basic delimiting period receiving Chapter 30 educational assistance benefits expired on February 2, 2008; ten years following the day after his discharge from active service. 3. The record indicates that the Veteran originally filed a claim for Chapter 30 educational assistance benefits in July of 1998. However, although educational assistance benefits were approved by VA, the Veteran did not attend classes and the benefits were not used. 4. The Veteran's most recent claim for Chapter 30 educational assistance benefits was received at the RO on July 28, 2008. The Veteran had not submitted a prior claim for benefits under Chapter 33 (the Post 9/11 Bill). 5. The evidence of record does not show that a physical or mental disability prevented the Veteran from initiating or completing an educational program during his basic Chapter 30 delimiting period, nor does the evidence show that he timely applied for an extension of his delimiting date. CONCLUSION OF LAW The Veteran was and is no longer entitled to educational assistance benefits provided by the Montgomery GI Bill, as of February 2, 2008. 38 U.S.C.A. §§ 3011, 3031 (West 2002); 38 U.S.C.A. §§ 3011, 3031 (West 2002 & 2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's General Counsel has held that the notice and assistance requirements of the VCAA are not applicable where there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. The General Counsel reasoned that there was no reasonable possibility that such a claim could be substantiated. VAOPGCPREC 5-2004 (2004), 69 Fed. Reg. 59989 (2004). Similarly the United States Court of Appeals for Veterans Claims (Court) has held that the VCAA was not applicable where the outcome is controlled by the law, and the facts are not in dispute. Livesay v. Principi, 15 Vet App 165, 178 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000). In this case the outcome is controlled by the law, and even if all of the facts alleged by the Veteran were accepted, he could not prevail. Hence, the VCAA is not applicable. Furthermore, the Board considers it significant that the written statements he has submitted throughout the pendency of this appeal suggest actual knowledge of the elements necessary to substantiate his claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). The Board's July 2012, remand was for the agency of original jurisdiction (AOJ) to consider evidence received after the AOJ's statement of the case, but before the case was received at the Board; and for efforts to obtain records that may have previously been part of the education folder or other VA folders. The AOJ did issue a supplemental statement of the case that considered the newly received evidence. The AOJ also searched for additional records in the custody of VA, but found no additional information or evidence. These actions substantially complied with the Board's remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). A veteran is eligible for educational assistance benefits pursuant to Chapter 30, Title 38, of the United States Code if he or she (1) first became a member of the Armed Forces after June 30, 1985; (2) served at least three years of continuous active duty in the Armed Forces with an obligated period of service of three years or more; and (3) was discharged from active duty with an honorable discharge. 38 U.S.C.A. § 3011(a) (West 2002); 38 C.F.R. § 21.7042(a) (2012). As a general rule, VA will not provide Chapter 30 educational assistance benefits to a veteran beyond 10 years from the later of the date of his last discharge or release from a period of active duty of 90 days or more of continuous service; or from a shorter period of service if additional circumstances are present. 38 C.F.R. § 21.7050(a) (2012). That is the delimiting date which marks the end of the veteran's basic period of eligibility for receiving Chapter 30 educational assistance benefits. A later ending date will be established for veterans who used a period of active duty other than the initial period to establish eligibility, or where high school education requirements were not met until after certain dates, or a veteran became eligible by virtue of the correction of military records. 38 C.F.R. § 21.7050(e)-(f) (2012). Periods after discharge when the veteran was a prisoner of war will not be counted as part of the delimiting date. 38 C.F.R. § 21.7050(g) (2012). Regulations allow for an extension of the 10-year delimiting period of eligibility under the Montgomery GI Bill, if the veteran applies for an extension within one year of the time when the original eligibility ended or within one year of the time when a physical or mental disability no longer prevented him or her from beginning or resuming a program of education. 38 C.F.R. §§ 21.1033(c), 21.7051(a)(1) (2012). In addition, the veteran must establish that he was prevented from initiating or completing his chosen program of education within the otherwise applicable eligibility period because of a physical or mental disability that did not result from his or her own willful misconduct. 38 C.F.R. §§ 21.1033, 21.7051(a) (2012). The regulations further state that it must be clearly established by medical evidence that a program of education was medically infeasible. Moreover, VA will not consider a veteran who was disabled for a period of 30 days or less as having been prevented from initiating or completing a chosen program unless the evidence shows that he was prevented from enrolling or reenrolling in the chosen program or was forced to discontinue attendance because of the short disability. 38 C.F.R. § 21.7051(a)(2) (2012). The Veteran's sole period of active duty was from November 18, 1996, to February 1, 1998. Therefore, his basic period of eligibility for Chapter 30 educational assistance benefits expired on February 2, 2008. The Veteran applied for Chapter 30 education benefits in July 1998 and was awarded benefits for a program of education that was to begin in August 1998. In September 1998, the AOJ received notice from the school that the Veteran had not started classes. In his substantive appeal, the Veteran reported that he attended classes for two weeks in 1998, but dropped out after discovering that the Montgomery GI Bill would not pay for books or tuition. The Veteran also points out that he attempted to contact VA in 2003, when he explained that he was incarcerated and sought information on obtaining assistance to attend a correspondence course. Copies of correspondence from the Veteran and his mother are in the education folder and include date stamps from the Roanoke, Virginia RO, showing receipt in July 2003. There is no record of a response to this correspondence from the RO or any other part of VA. The Veteran submitted a new claim for Chapter 30 benefits that was received by VA on July 28, 2008, more than five and half months after the delimiting date would have expired. Nevertheless, the Veteran asserts that his Chapter 30 period of eligibility should be extended, in part, because VA did not provide assistance to him in 1998 and 2003. The Veteran does not fall within the exceptions of 38 C.F.R. § 21.7050(e)-(g), which would permit a later delimiting date. He was not a prisoner of war, did not meet the high school requirements on a delayed basis; or have more than an initial period of service. He and his representative have argued that the Veteran paid into the Montgomery GI Bill program, but that he was unable to take advantage of his entitlement due to circumstances. The Veteran has not submitted any information that would suggest that he had documented health issues, either physical or mental, that prevented him from timely filing for educational assistance benefits. Furthermore, the Veteran has neither contended nor shown that he submitted a timely application for an extension of that 10-year delimiting period. Accordingly, the Board finds that he has not met the requisite criteria for extended eligibility under the Montgomery GI Bill. 38 C.F.R. §§ 21.1033, 21.7051(a) (2012). The Veteran has cited the insufficiency of payments in 1998 and the absence of a response from VA in 2003; but neither of these circumstances is recognized as bases for extending the delimiting period under applicable laws and regulations. The Veteran has also pointed out that throughout much of the delimiting period of Chapter 30 eligibility, he was incarcerated, but this is also not a recognized basis for extending the delimiting period. The Board does not have the authority to grant payment of a benefit that Congress has not authorized. See McTighe v. Brown, 7 Vet. App. 29, 30 (1994) (citing OPM v. Richmond, 496 U.S. 414, 426 (1990)). There is no legal basis for extending the Veteran's delimiting date to establish entitlement to Chapter 30 education benefits. As the law, and not the evidence of record, is dispositive in this case, the claim must be denied based on a lack of legal entitlement. Sabonis v. Brown, 6 Vet. App. 426 (1994). Finally, the Board is mindful that the veteran may desire, a reimbursement of the $1,200.00 he has reportedly contributed to the Montgomery GI Bill. However, VA does not have any control over the monies reduced from a service member's basic pay, nor the statutory authority to return that money. Instead, each specific branch of the Armed Forces is responsible for the restoration of funds. Thus, VA has no legal authority to refund the Veteran's contributions. Rather, it is more appropriate for the Veteran to address his dispute directly to the service department (the Department of the Army), an entity separate from VA, to request a refund. The Veteran is advised to contact the Army Human Resources Command, Army Continuing Education Division, 1600 Spearhead Division Avenue, Department #410, Fort Knox, Kentucky 40122-5401, for additional information concerning the possibility of a refund of the funds previously contributed. (CONTINUED ON NEXT PAGE) ORDER Entitlement to educational assistance benefits under 38 U.S.C.A. Chapter 30 (Montgomery GI Bill benefits) is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs