Citation Nr: 1325701 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 11-02 533 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to educational assistance benefits higher than 60 percent under Chapter 33 of Title 38 of the United States Code (post-9/11 GI Bill). REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran served on active duty from October 2004 to November 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 administrative decision by the Saint Louis, Missouri Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims file is now in the jurisdiction of the Louisville, Kentucky RO. The Veteran testified before the undersigned Veterans Law Judge in a Travel Board hearing in March 2011; a transcript of the hearing is of record. FINDINGS OF FACT 1. The Veteran served on active duty from October 2, 2004 to November 21, 2005; it is neither claimed nor shown that he had any prior or subsequent active duty. 2. The character of the Veteran's active duty service was honorable. 3. The Veteran had 416 days of creditable active duty service toward the Chapter 33 (post-9/11 GI Bill) educational assistance benefits. CONCLUSION OF LAW The criteria for educational assistance benefits higher than 60 percent under Chapter 33 of Title 38 of the United States Code (post-9/11 GI Bill) have not been met. 38 U.S.C.A. §§ 3311, 3313, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 21.9505, 21.9520, 21.9640 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In the present case, no VCAA notice was sent to the Veteran. The United States Court of Appeals for Veterans Claims (Court) has held, however, that the VCAA notification procedures do not apply in cases where the applicable chapter of Title 38 of the United States Code contains its own notice provisions. See Barger v. Principi, 16 Vet. App. 132, 138 (2002). VA educational programs contain their own provisions that address notification and assistance. See 38 C.F.R. §§ 21.1031, 21.1032. Furthermore, pre-decisional notification is not necessary when a claim cannot be substantiated because there is no legal basis for the claim, or where undisputed facts render the claimant ineligible for the claimed benefit (as is the case here). 38 C.F.R. § 21.1031(b). Therefore, the Board finds that no further action is necessary under the statutory and regulatory duties to notify and to assist. Legal Criteria, Factual Background, and Analysis The post-9/11 GI Bill, or 38 U.S.C.A. Chapter 33, provides for VA educational assistance for members of the Armed Forces based on active duty service after September 10, 2001. In addition, the individual must have served on active duty for a minimum of 90 aggregate days, excluding entry level and skill training. 38 C.F.R. § 21.9520(a). The requisite active duty service can also be met if an individual serves a minimum of 30 continuous days, and, after completion of such service, is discharged under other than dishonorable conditions due to a service-connected disability. 38 C.F.R. § 21.9520(b). The post-9/11 GI Bill defines "active duty" as full-time duty in the regular components of the Armed Forces or under a call or order to active duty under 10 U.S.C.A. §§ 688, 12301(a), (d), (g), 12302, 12304. See 38 C.F.R. § 21.9505. Aggregate length of creditable active duty service after September 10, 2001 determines the percentage of maximum amounts payable. The table is as follows, in pertinent part: 40 percent with at least 90 days, but less than 6 months, of creditable active duty service; 50 percent with at least 6 months, but less than 12 months, of creditable active duty service; 60 percent with at least 12 months, but less than 18 months, of creditable active duty service; 70 percent with at least 18 months, but less than 24 months, of creditable active duty service; 80 percent with at least 24 months, but less than 30 months, of creditable active duty service; 90 percent with at least 30 months, but less than 36 months, of creditable active duty service; 100 percent with at least 36 months of creditable active duty service or with at least 30 continuous days of creditable active duty service and a discharge due to a service-connected disability. 38 U.S.C.A. §§ 3311, 3313; 38 C.F.R. § 21.9640. In this case, the Veteran had creditable active duty service for the post-9/11 GI Bill from October 2, 2010 to November 21, 2005, a period of 416 days. In order to warrant educational assistance benefits higher than 60 percent under the post-9/11 GI Bill, and the requested 100 percent, the Veteran's creditable active duty service would have to be at least 36 months. It is not shown, nor alleged, that the Veteran has the requisite creditable active duty service to warrant increased educational assistance benefits, let alone at the 100 percent level. Consequently, the Veteran has no legal entitlement to any additional educational assistance under 38 U.S.C.A. Chapter 33, beyond what he has already received. As such, the Veteran's claim must be denied. In denying this claim, the Board acknowledges the Veteran's argument that administrative error by VA has caused financial hardship on himself and his family. Notably, the evidence shows that the Veteran was sent a Certificate of Eligibility by the St. Louis RO relating that he was entitled to education benefits under the post-9/11 GI Bill at the 100 percent level. The Board finds significant that in its review of the evidence of record there is a Chapter 33 eligibility calculator form, prepared presumably by the St. Louis RO, wherein it was noted that the Veteran had 416 days of creditable active duty service, and was entitled to educational assistance benefits at the 60 percent level under the post-9/11 GI Bill. It is unclear then why the Veteran was sent a Certificate of Eligibility by the RO indicating he was entitled to education benefits under the post-9/11 GI Bill at the 100 percent level when it appears the RO was aware prior to the issuance of the Certificate of Eligibility that the Veteran's creditable active duty service would only warrant educational assistance benefits at the 60 percent level. The Board also acknowledges the Veteran's contention that the January 2010 Certificate of Eligibility caused him to quit his job and move his family closer to a residence near his school, that he has borrowed money from people to cover expenses, and that he was not notified of the error of the January 2010 Certificate of Eligibility until after he started school. While the Board is truly sympathetic with the Veteran's argument and understands the hardship the circumstances of his case have placed himself and his family in, his arguments essentially constitute a theory of equitable relief. However, the Board is without authority to grant the Veteran's claim on an equitable basis and instead is constrained to follow the specific provisions of the law. See 38 U.S.C.A. § 7104. Such equitable relief may be had only from the Secretary directly. See 38 U.S.C.A. § 503; 38 C.F.R. § 2.7 (outlining the process for seeking equitable relief). ORDER Educational assistance benefits higher than 60 percent under Chapter 33 of Title 38 of the United States Code (post-9/11 GI Bill) is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs