Citation Nr: 1326666 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-00 654 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to basic eligibility for educational benefits under Chapters 30 and 33, Title 38, United States Code, and Chapter 1606 of Title 10, United States Code. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The appellant served in the North Carolina Army National Guard from December 1979 to December 2003. From June 1984 to December 2003, he was a member of the Active Guard Reserve (AGR) pursuant to Title 32. He was transferred to the retired reserves in January 2001. This case comes before the Board of Veterans' Appeals (Board) on appeal of August 2009 and November 2009 administrative decisions by the Department of Veterans Affairs (VA) Education Center in Muskogee, Oklahoma. The appellant testified at a Central Office hearing before the undersigned Veterans Law Judge (VLJ) in May 2011. A transcript of the hearing is associated with the claims file. In addition to the paper claims files, the Veteran also has an electronic claims file. The Board has reviewed both the paper and electronic claims files in rendering this decision. The issue of whether recoupment of education benefits in the amount of $3926.88 was proper has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it referred to the AOJ for any appropriate action. FINDINGS OF FACT 1. The Veteran did not enter active duty as a member of the Armed Forces after June 30, 1985. 2. The Veteran did not have any active duty service after September 10, 2001. 3. The record does not reflect that the Veteran had Selected Reserve service. 4. The Department of Defense (DOD) has determined that the appellant is not eligible for educational assistance benefits under Chapter 1606. CONCLUSIONS OF LAW 1. The criteria for basic eligibility to VA educational assistance benefits under 38 U.S.C.A. Chapter 30 (Montgomery GI Bill) and Chapter 33 (Post-9/11 GI Bill) have not been met. 38 U.S.C.A. §§ 3001-3021, 3201-3243, 3301-3324 (West 2002 & Supp. 2012); 38 C.F.R. §§ 21.7042, 21.7044, 21.7045, 21.9505, 21.9520 (2012). 2. The criteria for basic eligibility to VA educational assistance benefits under 10 U.S.C.A. Chapter 1606 (Montgomery GI Bill - Selected Reserve) have not been met. 10 U.S.C.A. §§ 16131-16137, 16161-16166 (West 2002 & Supp. 2012);38 C.F.R. §§ 21.7540, 21.9520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. There are certain situations, however, when the VCAA does not apply. The United States Court of Appeals for Veterans Claims (Court) has held that where the law, and not the underlying facts or development of the facts are dispositive in a case, the VCAA can have no effect on the appeal. See Manning v. Principi, 16 Vet. App. 534, 542 (2002). See also Smith v. Gober, 14 Vet. App. 227 (2002) (VCAA has no effect on appeal limited to interpretation of law); Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (VCAA not applicable where law, not factual evidence, is dispositive). Moreover, VA's General Counsel has held that the notice and duty to assist provisions of the VCAA are not applicable to a claim, as here, where it cannot be substantiated because there is no legal basis for it, or because the undisputed facts render the claimant ineligible for the claimed benefit. See VAOPGCPREC 5-2004 (June 23, 2004). The Board adds that general due process concerns have been satisfied in connection with this appeal. See 38 C.F.R. § 3.103. The Veteran has been accorded ample opportunity to present evidence and argument in support of his appeal. Therefore, further discussion of the VCAA is not required. See Bernard v. Brown, 4 Vet. App. 384, 392-394 (1993). Legal Criteria Chapter 30 Chapter 30 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. §§ 3001-3021. VA will pay Chapter 30 educational assistance 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 Chapter 30 educational assistance is the completion of certain requisite service. In order to be entitled to Chapter 30 educational assistance, 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 33 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. 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. Chapter 33. 38 C.F.R. § 21.9520. Chapter 1606 Chapter 1606 of Title 10, U.S. Code sets forth provisions to allow for educational assistance for Reserve members of the Armed Forces after their separation from military service. See 38 U.S.C.A. §§ 16131-16137. VA will pay educational assistance to an eligible reservist while he is pursuing approved courses in a program of education. 38 C.F.R. § 21.7540. A threshold requirement for Chapter 1606 educational assistance is the completion of certain requisite service. In order to be entitled to Chapter 1606 educational assistance, an individual must first become a member of the Reserve and enlist, reenlist, or extend enlistment in the Selected Reserve such that the total period of service is at least 6 years from the date of enlistment, reenlistment, or extension, or be appointed or serving as a Reserve officer for at least 6 years. See 10 U.S.C.A. §§ 16131, 16132; 38 C.F.R. § 21.7540. Analysis In this case, the Veteran asserts that his service in the National Guard and AGR has qualified him for education benefits. He contends that he was in receipt of Chapter 1606 education benefits when he attended school in 2003-2004, and has since been told that he does not qualify for VA education benefits based upon his service. He indicated that he was never informed of any eligibility period or service eligibility requirements for entitlement these benefits, or alternatively, he was misinformed as to whether he is entitled to education benefits. He denied any qualified service under Title 10 of the United States Code. In this case, the evidence shows that the Veteran joined the Army National Guard in December 1979, and he did not have three continuous years of active duty service. Therefore, he does not meet the initial eligibility requirements for Chapter 30 MGIB benefits under 38 U.S.C.A. § 3011(a)(1)(A), because he did not first become a member of the Armed Forces or first enter active duty as a member of the Armed Forces after June 30, 1985. Likewise, the evidence also shows that the Veteran did not serve on active duty after September 10, 2001. Therefore, he does not meet the initial eligibility requirements for Chapter 33 Post 9/11 benefits under 38 U.S.C.A. § 3311. Moreover, the Veteran did not have service in the Selected Reserve and did not serve in the Reserve after September 10, 2001. Of importance, in a November 2009 DOD certification, DOD found that the Veteran is not eligible for Chapter 1606 benefits as he was not part of a 6-year reserve component. The record reflects that the Veteran signed a reserve component contract in December 1982, but it was immediately suspended because he was already AGR. DOD indicated that the Veteran should have never received Chapter 1606 benefits and may be subject to overpayment or recoupment actions. As such, he does not meet the eligibility requirements for educational benefits under the Montgomery GI Bill-Selected Reserve. The Board has considered the appellant's argument that he was in receipt of education benefits before, and he should be entitled again. As noted above, the Veteran never qualified for Chapter 1606 (or any other education benefits as shown above), and he should not have been given this education benefit in the mid-2000s. Additionally, the Veteran does not have the requisite active duty service in the timeframes specified under Chapters 30 and 33 to entitle him to education benefits under those chapters. The Board recognizes the appellant's contentions that he was misinformed about his eligibility. Although VA is required to inform a veteran correctly about basic eligibility or ineligibility for educational assistance benefits, the remedy for breach of such an obligation by VA or military officials cannot involve payment of benefits where statutory requirements for such benefits are not met. Harvey v. Brown, 6 Vet. App. 416, 424 (1994). Even if the appellant was misinformed, as he contends, the Board is without legal authority to grant his claim on that basis. The appellant's contentions with respect to his eligibility have been sympathetically considered, but in this case, the applicable law and regulations as written preclude a grant of benefits, even on an equitable basis. See 38 U.S.C.A. §§ 503, 7104; see also Harvey at 425. "No equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). The Board is without the authority to disregard the applicable law, notwithstanding any extenuating circumstances that may have existed at the relevant time in question. Congress did not enact any exceptions to the above-discussed legal provisions that would permit a grant of the requested education benefit. 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 Eligibility for VA educational benefits under Chapters 30 and 33, Title 38, United States Code, and under Chapter 1606, Title 10, United States Code, is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs