Citation Nr: 1322058	
Decision Date: 07/10/13    Archive Date: 07/18/13

DOCKET NO.  13-01 227	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Eligibility for transferred educational assistance benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill).


ATTORNEY FOR THE BOARD

Shamil Patel, Counsel



INTRODUCTION

The Veteran had active service from March 1953 to February 1956.  The appellant is the Veteran's son.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the benefits sought on appeal.  The matter has otherwise been adjudicated by the RO in Montgomery, Alabama.

The appellant failed to appear for a scheduled Travel Board hearing in May 2013 without explanation.  Accordingly, the appellant's request for a hearing is considered withdrawn.  See 38 C.F.R. § 20.704(e) (2012).

The Virtual VA file has also been reviewed as part of his claim.


FINDING OF FACT

The Veteran did not serve on active duty for a minimum of 90 days after September 10, 2001.


CONCLUSION OF LAW

The criteria for basic eligibility to receive a transfer of educational benefits under Chapter 33, United States Code, have not been met. 38 U.S.C.A. §§ 3301, 3311, 3313 (West Supp. 2012); 38 C.F.R. §§ 21.9550, 21.9570 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA) outlines procedural assistance VA must provide to claimants in certain cases.  If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied.  There are some claims, however, to which VCAA does not apply.  Livesay v. Principi, 15 Vet. App. 165, 178 (2001).  For example, it has been held not to apply to claims that turned on statutory interpretation.  Smith v. Gober, 14 Vet. App. 227, 231-232 (2000).

The Board notes that the issues in this case turn on statutory interpretation.  See Smith, 14 Vet. App. at 231-232.  Because the law as mandated by statute, and not the evidence, is dispositive of this appeal, the VCAA is inapplicable.  Mason v. Principi, 16 Vet. App. 129 (2002); see also Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought).  As such, no further action is required pursuant to the VCAA.

Chapter 33 Educational Benefits

Chapter 33 of Title 38, U.S. Code 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. §§ 3301-3324 (West 2002 & Supp. 2012).  A threshold requirement for Chapter 33 educational assistance is the completion of certain requisite service.  In order to be entitled to Chapter 33 educational assistance, an individual must first show that he had active duty service after September 10, 2001, meet certain minimum service requirements, and make an irrevocable election to receive benefits under 38 U.S.C.A. Chapter 33.  38 C.F.R. § 21.9520 (2012).  

An eligible individual is entitled to a maximum of 36 months of educational assistance under Chapter 33 and can transfer up to the full 36 months of his or her entitlement to a dependent.  38 C.F.R. §§ 21.9550, 21.9570.  Eligible dependents include children or stepchildren who meet VA's definition of a child under 38 C.F.R. § 3.57.  38 C.F.R. § 21.9570(b)(1).  The definition of the term "child," as defined for the purposes of establishing dependency status, means an unmarried person who is a legitimate child; a child legally adopted before the age of 18 years; a stepchild who acquired that status before the age of 18 years and who is a member of the Veteran's household at the time of the Veteran's death; or an illegitimate child.  In addition, the child must be someone who: (1) is under the age of 18 years; (2) before reaching the age of 18 years became permanently incapable of self-support; or (3) after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution.  38 U.S.C.A. § 101(4); 38 C.F.R. § 3.57(a).

The record reflects that the appellant was born in May 1959.  There is no indication that he meets the definition of "child" as outlined in 38 C.F.R. § 3.57.

Moreover, the appellant is seeking Chapter 33 benefits based upon the service of the deceased Veteran.  However, Veterans Identification Data associated with the claims file establishes that the Veteran served on active duty from 1953 to 1956.  Therefore, the Veteran does not have the requisite service to warrant benefits under the Post-9/11 GI Bill.

The Veteran was the appellant's stepfather.  In various written statements, the appellant also argued that he is entitled to benefits based on the service of his natural father, D.L.B.  However, in these statements, the appellant stated that D.L.B. participated in the Bay of Pigs operation in Cuba, which occurred in 1961.  Even assuming that the appellant's statements are true, service after September 10, 2001 has not been established.  Without the requisite service, entitlement to educational assistance under the Post-9/11 GI Bill cannot be awarded.


ORDER

Transferred educational assistance under Chapter 33, Title 38, United States Code is denied.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs