Citation Nr: 1326875 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 10-43 951A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether the Veteran's Notice of Disagreement with the denial of his request for a refund of Veterans Educational Assistance Program (VEAP) benefits was timely filed. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from December 1980 to May 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which determined that, because the Veteran's Notice of Disagreement (NOD) with respect to the denial of his request for a refund of Veterans Educational Assistance Program (VEAP) benefits was not timely filed, no further action would be taken on this request. A Travel Board hearing was held at the RO in August 2011 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. The Board notes that the Veteran was not represented before VA prior to appointing his current state-level service representative in November 2012. The Board also notes that, although the RO in Muskogee, Oklahoma, retains jurisdiction over this appeal because it involves an educational benefits claim, the Veteran currently lives within the jurisdiction of the RO in Oakland, California. The issues of entitlement to service connection for residuals of a low back disability, residuals of a right shoulder injury, residuals of a left ankle injury, bilateral hearing loss, and for tinnitus have been raised by the record but have not been adjudicated by the Agency of Original Jurisdiction (AOJ) (in this case, the RO in Oakland, California). The Veteran filed all of these claims at the RO in Oakland, California, in November 2012. Therefore, the Board does not have jurisdiction over these claims and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. A review of VA records shows that an educational benefits disenrollment refund check was issued to the Veteran in the amount of $1,200.00 on February 1, 1985, based on a finding of hardship; these records show that this check was not returned to VA. 2. The Veteran filed a claim for Veterans Educational Assistance Program (VEAP) benefits on a VA Form 22-8821, "Application for Educational Assistance" which was dated on June 2, 1995, and date-stamped as received by the RO on June 14, 1995. 3. VA promulgated an educational benefits award for the Veteran on July 28, 1995. 4. The Veteran's application for a refund of VEAP benefits was filed on a VA Form 5281, "Application For Refund Of Educational Contributions," dated on March 19, 1996. 5. In a letter dated on March 25, 1996, and sent to the Veteran, VA notified him that his VA Form 5281 was being returned because it was incomplete. 6. The Veteran submitted a letter marked "Notice of Disagreement" which was date-stamped as received by VA on June 7, 2010, in which he disagreed with the denial of his March 1996 request for a refund of VEAP benefits. 7. The Veteran's Notice of Disagreement with the denial of his request for a refund of VEAP benefits was not filed until June 7, 2010, more than 1 year after the March 1996 decision denying his original request for a refund of VEAP benefits. CONCLUSION OF LAW Because the Veteran's notice of disagreement was untimely filed, his claim for a refund of VEAP benefits it must be denied as a matter of law. 38 U.S.C.A. §§ 3221, 3222 (West 2002); 38 C.F.R. §§ 21.5040, 21.5041, 21.5060 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. The Court has held that where the law, and not the underlying facts or development of the facts, is dispositive, the VCAA is inapplicable. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). See also Smith v. Gober, 14 Vet. App. 227, 230 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOGCPREC 5-2004 (June 23, 2004). VCAA notice also is not required in this case since the Veteran is alleging entitlement to a refund of educational benefits and educational benefits are governed by Chapter 30 of Title 38, United States Code. See Simms v. Nicholson, 19 Vet. App. 453, 456 (2007) (holding that the VCAA applied only to the award of benefits under Chapter 51, Title 38, United States Code); Barger v. Principi, 16 Vet. App. 132, 138 (2002) ("the notice and duty to assist provisions of the [VCAA]. . . are relevant to a different Chapter of Title 38 and do not apply to this appeal"). Accordingly, the Board finds that the VCAA is inapplicable to this claim and no further notice or assistance to the Veteran is required. Laws and Regulations The Veteran contends that he is entitled to a refund of VEAP benefits. He alternatively contends that the refund of VEAP benefits issued in February 1985 was improper because it was issued while he still was on active duty. He finally contends that his June 2010 Notice of Disagreement with the March 1996 decision denying his request for a refund of VEAP benefits was timely filed with VA. Chapter 32 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. §§ 3201-3243. A threshold requirement for Chapter 32 educational assistance is the completion of certain requisite service. In order to be entitled to Chapter 32 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 January 1, 1977 and before July 1, 1985, but not be eligible under Chapter 34 of Title 38, U.S. Code, and must have served on at least 181 days of active duty or have been discharged from active duty for a service-connected disability. The individual must enroll in the educational benefits program during the period of active duty and participate for at least 12 consecutive months. A person electing to participate in the program shall agree to have a monthly deduction made from his or her military pay. See 38 U.S.C.A. §§ 3221(a), 3222(a) (West 2002); 38 C.F.R. §§ 21.5040(a), 21.5052(a) (2012). Under 38 C.F.R. § 21.5060, disenrollment from VEAP will occur when a Veteran has not utilized all of his or her entitlement benefits within the 10-year period stated in 38 C.F.R. § 21.5041 (in this case 10 years after the Veteran separated from service) and at the end of one year thereafter has not filed a claim for educational assistance allowance as provided in 21.5030(c). Under 38 C.F.R. § 21.5064(a), a disenrolled individual will be refunded all contributions made by him or her to the fund. The amount of the contributions refunded upon disenrollment shall be limited to the amount of his or her contributions not utilized to receive benefits as of the date of disenrollment, less any outstanding debts resulting from overpayments of educational assistance allowance. Id. See also 38 C.F.R. § 21.5052 (setting forth contribution requirements). Generally, a Notice of Disagreement with a determination by the agency of original jurisdiction (in this case, the RO) must be filed within 1 year from the date that the determination was mailed to the Veteran. Otherwise, that determination becomes final. See 38 U.S.C.A. § 7105(b)(1); 38 C.F.R. § 20.302. Factual Background The Veteran's available service personnel records (in this case, his DD Form 214) shows that he had active service from December 1980 to May 1985. A review of computerized VA records shows that an educational benefits disenrollment refund check in the amount of $1,200.00 was issued to the Veteran on February 1, 1985, based on a finding of hardship. These records also show that this refund check was not returned to VA. A review of the Veteran's VA education file shows that he filed a claim for VEAP benefits on a VA Form 22-8821, "Application for Educational Assistance" that was dated on June 2, 1995, and date-stamped as received by the RO on June 14, 1995. Pursuant to the Veteran's June 1995 application for VEAP benefits, VA promulgated an educational benefits award for the Veteran on July 28, 1995. VA also issued an Eligibility Certificate for Chapter 32 benefits in July 1995. A review of this certificate shows that the Veteran was authorized 1 month of on-the-job training at a trucking school in order to become a truck driver. The Veteran's application for a refund of VEAP benefits was filed on a VA Form 5281, "Application For Refund Of Educational Contributions," dated on March 19, 1996. In a letter dated on March 25, 1996, and sent to the Veteran, VA notified him that his VA Form 5281 was being returned because it was incomplete. VA also advised the Veteran in this letter that his VA Form 5281 "must be notarized or signed by a VA official in your presence." The Veteran submitted a letter marked "Notice of Disagreement" which was date-stamped as received by VA on June 7, 2010, in which he disagreed with the denial of his March 1996 request for a refund of VEAP benefits. As noted in the Introduction, in the currently appealed administrative decision dated on July 7, 2010, the RO notified the Veteran that he had 1 year from the date of VA's original letter concerning his request for a refund of VEAP benefits to initiate an appeal and, because the time for appealing that decision had long since expired, his Notice of Disagreement was invalid. The RO also notified the Veteran that the VEAP records reflected that he had been issued a refund of VEAP benefits in 1996. He finally was notified that he had the right to appeal the RO's decision that his Notice of Disagreement had been untimely filed. In statements on a VA Form 9 dated on September 1, 2010, and date-stamped as received by the RO on September 7, 2010, the Veteran disagreed with the RO's administrative decision that his Notice of Disagreement with the decision denying his request for a refund of VEAP benefits was untimely. He asserted, " I never received the $1200 dollars as stated because at the time I was still a member of the Armed Forces." The RO accepted this VA Form 9 in lieu of a Notice of Disagreement on the issue of whether the Veteran's Notice of Disagreement with the denial of his request for a refund of VEAP benefits was timely filed. In statements on a VA Form 9 dated on November 1, 2010, and date-stamped as received by the RO on November 3, 2010, the Veteran asserted that, because his March 1996 VA Form 5281 had never been notarized, no refund of VEAP benefits should have been issued by VA. The Veteran testified at his August 2011 Board hearing that he never received a $1,200.00 refund check for VEAP benefits in February 1985 because he was on active duty at that time. See Board hearing transcript dated August 4, 2011, at pp. 4. He also testified that he received a separate refund check for VEAP benefits in the amount of $24.38 in December 1996. Id., at pp. 8-9. Analysis The Board finds that the Veteran's claim for a refund of VEAP benefits must be denied as a matter of law. The Board acknowledges initially that there is an apparent discrepancy in the available VEAP records concerning when a refund of VEAP education benefits was issued to the Veteran. The RO informed the Veteran in repeated correspondence promulgated during the pendency of this appeal that a refund of VEAP education benefits had been issued to him in December 1996. After a thorough review of the available VEAP records obtained by the RO and forwarded to the Board, it appears that a refund check of $1,200.00 for VEAP benefits was issued to the Veteran on February 1, 1985. The Board also acknowledges that the Veteran was not discharged from active duty until May 1985. This suggests that he was on active duty at the time that the February 1985 refund check for VEAP education benefits apparently was issued to him. The Board agrees with the Veteran's repeated assertions that it was not logical for a refund check for VEAP benefits to be issued by VA in February 1985 while he was on active duty and before it appears that he applied to VA for a refund of VEAP benefits. The fact remains, however, that the Veteran waited more than 14 years between when he was notified that his March 1996 request for a refund of VEAP benefits would not be processed unless he had a VA Form 5281 properly notarized and when he filed his Notice of Disagreement in June 2010 with the denial of his request for a refund of VEAP benefits. The Veteran has asserted that he never received the $1,200.00 refund check for VEAP benefits issued to him by VA. The Board notes that the Court has held that "[t]he presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." Clear evidence to the contrary is required to rebut the presumption of regularity. See Ashley v. Derwinski, 2 Vet. App. 307 (1992) (quoting United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926)). While Ashley dealt with the regularity of Board procedures, in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the Court applied the presumption of regularity to procedures at the RO level. The Court specifically held in Mindenhall that a statement of an appellant, standing alone, is not sufficient to rebut the presumption of regularity in RO operations. As noted elsewhere, a review of VEAP records shows that a $1,200.00 refund check for VEAP benefits was issued to the Veteran. These records suggest that this refund check was issued on February 1, 1985, and was not returned to VA (for example, due to a bad mailing address for the Veteran). Even assuming for the sake of argument only that a refund check for VEAP benefits could not have been issued to the Veteran in February 1985 because he was on active duty at that time, the RO also has indicated that a refund check for VEAP benefits was issued to the Veteran in December 1996. The Veteran himself testified before the Board in August 2011 that he received a refund check for VEAP benefits in the amount of $24.38 in December 1996. Having reviewed the record evidence, the Board concludes that the RO promulgated a $1,200.00 refund check for VEAP benefits in February 1985 and a separate refund check for VEAP benefits in the amount of $24.38 in December 1996 as part of its regular procedures in processing requests for refunds of VEAP benefits. Regardless of whether the Veteran received a refund check for VEAP benefits in February 1985 or in December 1996, again, the fact remains that he waited far more than 1 year before initiating an appeal of the denial of his request for a refund of VEAP benefits. The record evidence does not show, and the Veteran does not contend, that he initiated an appeal of the denial of his request for a refund of VEAP benefits prior to when he filed a statement marked "Notice of Disagreement" that was date-stamped as received by the RO on June 7, 2010. The RO correctly determined in the currently appealed administrative decision issued in July 2010 that the Veteran's Notice of Disagreement with the denial of his request for a refund of VEAP benefits was untimely filed because it was received more than 1 year after the original decision that the Veteran sought to appeal. See 38 U.S.C.A. § 7105(b)(1); 38 C.F.R. § 20.302. The Board agrees with the RO's determination and finds that the Veteran's argument to the contrary is without legal merit. To the extent the Veteran argues that he was provided with erroneous information by the RO concerning the date of his prior refund of VEAP benefits, the Court has held that, since payment of government benefits must be authorized by statute, inaccurate advice does not create any legal right to benefits where such benefits otherwise are precluded. See McTighe v. Brown, 7 Vet. App. 29, 30 (1994) ("erroneous advice given by a government employee cannot be used to estop the government from denying benefits"); see also Harvey v. Brown, 6 Vet. App. 416, 424 (1994) (holding that an appellant was not entitled to education benefits based on his assertion that misleading or erroneous information was provided regarding education benefits). In other words, even assuming for the sake of argument only that the Veteran was misinformed by VA concerning his prior refund of VEAP benefits, the Board is without legal authority to grant the claim. To the extent that the Veteran argues that he was unaware of what he needed to do in order to initiate an appeal of the denial of his request for a refund of VEAP benefits, it is clear that ignorance cannot be used as an excuse for failure to follow a promulgated regulation. See Morris v. Derwinski, 1 Vet. App. 260 (1991), citing Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-85 (1947). The Court in Morris noted that the Supreme Court had held in Merrill that persons dealing with the Government were charged with knowledge of Federal statutes and lawfully promulgated agency regulations, regardless of actual knowledge or hardship resulting from innocent ignorance. Morris, 1 Vet. App. at 265. In fact, the Court recently confirmed that VA regulations are "binding on all who seek to come within their sphere," regardless of whether an appellant has actual knowledge of what is in the regulations. Jernigan v. Shinseki, 25 Vet. App. 220 (2012). While the Board is sympathetic to the Veteran's frustration in attempting to obtain a refund of VEAP benefits, it is bound by applicable law and regulations. 38 U.S.C.A. § 7104(c). The Veteran's argument is grounded in equity in that he asserts that it would be inequitable for the Board to find his June 2010 Notice of Disagreement untimely and bar his claim for a refund of VEAP benefits. The Board is without authority to grant benefits simply on the basis that it might be perceived as equitable, however. See 38 U.S.C.A. §§ 503, 7104; see also Harvey, 6 Vet. App. at 425. The Board observes in this regard that the Court has held that "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 legal criteria governing the time limits for initiating an appeal of a determination by the agency of original jurisdiction (in this case, the RO) are clear. See 38 U.S.C.A. § 7105(b)(1); 38 C.F.R. § 20.302. It also is clear that the Veteran is attempting to initiate an appeal of an adverse determination by the RO concerning his request for a refund of VEAP benefits well outside these clear time limits. In this regard, the Board finally notes that the Court has held that "[t]he duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In summary, the Board finds that, because the law, and not the evidence, is dispositive of the Veteran's claim, it must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Because the Veteran's Notice of Disagreement with the denial of his request for a refund of Veterans Educational Assistance Program (VEAP) benefits was not timely filed, his claim is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs