Citation Nr: 1328324	
Decision Date: 09/05/13    Archive Date: 09/16/13

DOCKET NO.  11-03 498	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, 
Oklahoma



THE ISSUE

Basic eligibility to receive a transfer of educational 
benefits under Chapter 33, United States Code.



ATTORNEY FOR THE BOARD

Debbie A. Breitbeil, Counsel






INTRODUCTION

The Veteran served on active duty in the Army and in the 
Army Reserve from November 1987 to March 1992, January 1993 
to January 1996, August 1997 to April 1998, March 2001 to 
November 2001, and January 2003 to November 2004.  The 
appellant is the Veteran's spouse.  This matter is before 
the Board of Veterans' Appeals (Board) on appeal from an 
August 2009 decision of a Department of Veterans Affairs 
(VA) Regional Office (RO) in Muskogee, Oklahoma, which 
denied basic eligibility for a transfer of educational 
benefits under Chapter 33, United States Code.  

The appellant filed a notice of disagreement with the August 
2009 decision in October 2009, and the RO issued her a 
statement of the case (SOC) in April 2010.  Thereafter, the 
appellant filed a statement in July 2010 regarding her "VA 
appeal," which the Board interprets as a timely filed 
substantive appeal to perfect her appeal to the Board.  It 
appears, however, that the RO construed the appellant's July 
2010 statement as a new claim to establish her eligibility 
for Chapter 33 education benefits.  That is because the RO 
again denied the claim in an August 2010 decision and 
construed an August 2010 statement from the appellant as a 
notice of disagreement, prompting it to issue another SOC in 
September 2010, following which the appellant filed a VA 
Form 9 (Appeal to Board of Veterans' Appeals).  In any case, 
the Board deems that the appellant has pursued her appeal 
ever since the initial RO decision on the matter in August 
2009.  


FINDING OF FACT

The service department is not shown to have approved a 
request by the Veteran for a transfer of educational 
benefits.


CONCLUSION OF LAW

The criteria for establishing basic eligibility for a 
transfer of educational benefits under Chapter 33, United 
States Code are not met.  38 U.S.C.A. §§ 3301, 3311, 3313, 
3319 (West 2002 & Supp. 2012); 38 C.F.R. §§ 21.9550, 21.9570 
(2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, 
and implemented in part at 38 C.F.R § 3.159, amended VA's 
duties to notify and to assist a claimant in developing 
information and evidence necessary to substantiate a claim.  
For educational assistance claims, the regulations 
delineating the specific notification and assistance 
requirements are set forth in 38 C.F.R. §§ 21.1031, 21.1032.  
These provisions apply to the Post 9/11 GI Bill program.  38 
C.F.R. § 21.9510.  

In this case, the essential facts are not in dispute; the 
case rests on the interpretation and application of the 
relevant law.  The VCAA does not affect matters on appeal 
when the issue is limited to statutory interpretation.  See 
Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. 
Principi, 15 Vet. App. 143 (2001); see also VAOPGCPREC 2-
2004 (2004) at 69 Fed. Reg. 25180 (2004) (VCAA notice is not 
required where evidence could not establish entitlement to 
the benefit claimed).  There is no possibility that any 
additional notice or development would aid the appellant in 
substantiating her claim.  38 U.S.C.A. §§ 5103, 5103A (West 
2002); see Dela Cruz.  Therefore, the Board finds that no 
further action is necessary under the statutory and 
regulatory duties to notify and assist.



Legal Criteria and Analysis

The appellant asserts that she is entitled to a transfer 
from the Veteran of educational benefits under Chapter 33, 
United States Code.  She argues that as the spouse of the 
Veteran, she is eligible to receive 100 percent of the 
Chapter 33 benefits under the Post-9/11 GI Bill to which he 
was entitled.  She notes that he was medically retired from 
service due to service-connected disability and had served 
23 months after September 11, 2001.  She asserts that 
information provided by VA supports her claim that he was 
qualified for these benefits and could transfer them to her.  

The Post-9/11 GI Bill was enacted by Congress in June 2008.  
See Pub. L. No. 110-252, Title V, §§ 5001-5003, 122 Stat. 
2357 (2008).  The statutory provisions are codified at Title 
38, U.S.C.A Chapter 33.  VA promulgated new regulations to 
implement the change in law in March 2009, and the 
regulations are now codified at 38 C.F.R. §§ 21.9500-21 
.9770 (2012).  Under these provisions, 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.  A transferor may 
not transfer an amount of entitlement that is greater than 
the entitlement he or she has available at the time of 
transfer.  38 C.F.R. § 21.9570. 

The Chapter 33 provisions that pertain to the authority to 
transfer unused education benefits to family members are 
found in 38 U.S.C.A. § 3319 (West Supp. 2012).  An eligible 
individual is any member of the uniformed services who, at 
the time of the approval of the individual's request to 
transfer entitlement to educational assistance under this 
section, has completed at least (1) six years of service in 
the armed forces and enters into an agreement to serve at 
least four more years as a member of the uniformed services; 
or (2) the years of service as determined in regulations 
pursuant to subsection (j).  38 U.S.C.A. § 3319(b).  
Further, an individual approved to transfer an entitlement 
to educational assistance under this section may transfer 
his entitlement to his spouse.  38 U.S.C.A. § 3319(c)(1).  

The appellant filed VA Form 22-1990, Application for VA 
Educational Benefits, in July 2009, seeking to use the 
Veteran's Montgomery GI Bill (MGIB) education benefits 
through the "Transfer of Entitlement" program.  

In email correspondence dated in July 2009, the RO requested 
verification of the Veteran's eligibility to benefits under 
the TOE (transfer of entitlement) program.  In response, the 
Army reportedly stated that as the Veteran had not 
reenlisted after July 20, 2006 and elected to transfer a 
portion of his bonus so that his spouse could receive the 
benefits, his spouse was not eligible for the benefit 
transfer.  

In its August 2009 decision denying the claim, the RO in 
essence determined that as the Veteran did not meet the 
requirements to be eligible for the transfer program, he did 
not have the option to transfer his benefits to the 
appellant.  The RO cited to information from the Department 
of Defense, which indicated that the Veteran had not 
reenlisted after July 20, 2006 (reenlistment for four more 
years with an election to participate in the transfer 
program at the time of reenlistment was one of the 
requirements).  It was noted in an April 2010 statement of 
the case that according to the Department of Defense, the 
Army implemented the transfer of entitlement option for 
spouses effective July 21, 2006, which came after the 
Veteran's release from active duty.  Service personnel 
records indicate that the Veteran last served a period of 
active duty from January 2003 to November 2004 in the Army 
Reserve and was then placed on the Temporary Disability 
Retired List (TDRL), from which he was removed in October 
2009.  

Additional evidence to support the RO's denial includes a 
"Veterans Information Solution" printout, dated in March 
2010, which provides data on the Veteran's active duty 
service periods (including Reserve active duty periods) for 
Chapter 33 education benefits purposes, and specifically 
states "No Transfer of Entitlement Information."  

Following additional evidence in the form of copies of the 
Veteran's service personnel and treatment records received 
from the appellant, the RO again denied the appellant's 
claim in August 2010.  The RO explained that it could not 
approve her claim for Post-9/11 GI Bill benefits because it 
has "no proof that the veteran had applied for the 
transferability program through the TEB [Transfer of 
Education Benefits] website."  (Service members must be 
approved through the TEB website before the VA can issue a 
certificate of eligibility.)  In reaching the decision, the 
RO used the Department of Defense (DoD) data records.  As 
indicated on "Veterans Information Solution" printouts, 
dated in August 2010 and September 1010, reflective of DoD 
data, there was "No Transfer of Entitlement Information."  

In a September 2010 statement of the case, the RO continued 
the denial, explaining that DoD records did not reflect that 
the Veteran was eligible to transfer Post-9/11 GI Bill 
entitlement to a dependent and VA therefore denied the 
appellant's request for benefits under the Post-9/11 GI Bill 
transfer of entitlement provision.  In reliance on DoD data, 
the RO stated that its denial of benefits was correct, that 
VA was unable to change a DoD decision, and that the Veteran 
should contact DoD directly for a possible resolution. 

In October 2010, the appellant again filed VA Form 22-1990, 
Application for VA Educational Benefits, seeking benefits 
under Chapter 33 (Post-9/11 GI Bill) to attend the 
University of Phoenix.  She also electronically filed VA 
Form 22-1990E, Application for Family Member to Use 
Transferred Benefits, in October 2010, to attend a 
university for a master's degree.  

In December 2010, the RO continued the denial of the 
appellant's claim for benefits under the transfer of 
entitlement provision of the MGIB because it had no proof 
that the Veteran had applied for the transferability program 
through the TEB.  In reaching the decision, the RO used the 
Department of Defense (DoD) data records.  As indicated on a 
December 2010 "Veterans Information Solution" printout 
reflective of DoD data, there was "No Transfer of 
Entitlement Information."  The same information was provided 
in "Veterans Information Solution" printouts, dated in 
January 2011 and February 2011.  

The appellant has not submitted any evidence to show that 
the Veteran ever received approval of a transfer request for 
educational benefits on behalf of the appellant from the 
service department.  Moreover, there is no evidence to show 
that the Veteran has ever requested a transfer of 
educational benefits on the appellant's behalf that met the 
criteria at 38 C.F.R. § 21.9570(d).  The provisions of 
38 U.S.C.A. § 3319 and 38 C.F.R. § 21.9570 indicate that the 
decision as to transferability of Chapter 33 benefits rests 
with the service department and not VA.  Consequently, the 
appellant has not presented evidence in support of her 
claim.  See 38 U.S.C.A. § 5107(a) (a claimant has the 
responsibility to present and support a claim for VA 
benefits); Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. 
Cir. 2009) (the "support" requirement of section 5107(a) 
obligates the claimant to provide some evidentiary basis for 
his or her benefits claim); Jones v. Shinseki, 23 Vet. App. 
382, 391 (2009) ("Notwithstanding the duty to assist, it 
remains the claimant's responsibility to submit evidence to 
support his claim").  In this case, the Board makes no 
judgment on whether or not the Veteran has met the 
requirements in order to be eligible for the transfer of 
education benefits program, as that determination is solely 
the province of the service department to decide.  The 
Board's determination is predicated on whether or not the 
appellant has met the requirements of basic VA eligibility 
for receipt of a transfer of education benefits under 
Chapter 33; DoD's approval for the transfer of education 
benefits from the Veteran to the appellant is the first 
requirement.  

In summary, the service department is not shown to have 
approved a request from the Veteran for a transfer of 
educational benefits to the appellant.  The service 
department's findings on such matters are conclusive and 
binding on VA.  See e.g., Duro v. Derwinski, 2 Vet. App. 530 
(1992); Dacoron v. Brown, 4 Vet. App. 115, 120 (1993).  
Thus, the appellant's only recourse lies within the relevant 
service department, and not VA.  See e.g., Soria v. Brown, 
118 F.3d 747, 749 (Fed. Cir. 1997). 

For the foregoing reasons, the appellant is not eligible for 
a transfer of benefits under the Post-9/11 GI Bill.  Her 
claim for these benefits must therefore be denied as a 
matter of law.  Sabonis v. Brown, 6 Vet. App. 426, 430 
(1994).  To the extent that she argues that the Veteran's 
service was sufficient to qualify him to be eligible for VA 
education benefits and to transfer such benefits to her, as 
she has not met the threshold requirement for basic 
eligibility for transfer of benefits - DoD approval for 
transferability - these are questions that do not need to be 
addressed. 


ORDER

The appeal seeking basic eligibility to receive a transfer 
of educational benefits under Chapter 33, United States 
Code, is denied.  


____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs