Citation Nr: 1335091 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 11-18 947 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Whether the Veteran made an irrevocable election for educational benefits under the Post-9/11 GI Bill program (Chapter 33) in lieu of benefits under the Montgomery GI Bill (MGIB) program (Chapter 30). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran had active military service from July 1996 to July 1999, and from June 2004 to May 2010. This matter is before the Board of Veterans' Appeals (Board) on appeal from a determination of the Education Office at the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The claim is now under the jurisdiction of the RO in Jackson, Mississippi. In August 2011, the Veteran presented testimony in support of this claim at a hearing before the undersigned Veterans Law Judge (VLJ) sitting at the Jackson RO. A transcript of that hearing is of record. FINDINGS OF FACT 1. On February 9, 2011, the RO received the Veteran's electronically filed application for educational benefits under the Post-9/11 GI Bill program (Chapter 33) in lieu of benefits under the Montgomery GI Bill (MGIB) program (Chapter 30). 2. In February 2011, the RO issued a letter to the Veteran notifying her that she was eligible to receive benefits under the Post-9/11 GI Bill and had 3 months and 12 days of full-time benefits. CONCLUSION OF LAW The Veteran's election for educational benefits under the Post-9/11 GI Bill program in lieu of benefits under the Montgomery GI Bill program is irrevocable. 38 U.S.C.A. §§ 3301-24 (West 2002); 38 C.F.R. § 21.9520, 21.9550 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In the present case, the Board acknowledges that no VCAA letter was sent to the Veteran. However, the United States Court of Appeals for Veterans Claims (Court) has held that VCAA notification procedures do not apply in cases where the applicable chapter of Title 38, United States Code contains its own notice provisions. See Barger v. Principi, 16 Vet. App. 132, 138 (2002) (VCAA notice was not required in case involving a waiver request). In the present case, specific VCAA notice was not required because the applicable regulatory notification procedure was contained in 38 C.F.R. § 21.1031 for education claims, rather than the VCAA. VA's duty to notify is outlined under 38 C.F.R. § 21.1031(b) and the duty to assist is outlined under 38 C.F.R. § 21.1032. Furthermore, the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter. 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). In fact, the applicable notification and assistance procedures for educational assistance claims under 38 C.F.R. § 21.1031(b) and § 21.1032(d) emphasize that VA has no further duty to notify or assist the claimant when the undisputed facts render the claimant ineligible for the claimed benefit under the law, as is the case here. Therefore, the Board finds that no further action is necessary under the statutory and regulatory duties to notify and assist. II. Law and Analysis In February 2011, the Veteran applied for educational benefits under the Post-9/11 GI Bill program via an electronically filed VA Form 22-1990. The benefit requested was, "Chapter 33 in lieu of Chapter 30." The Veteran requested these benefits effective February 1, 2011. See 38 U.S.C.A. §§ 3301-24; 38 C.F.R. § 21.9520. On February 28, 2011, the RO processed the Veteran's application and issued a Certificate of Eligibility under the Post-9/11 GI Bill program. This Certificate of Eligibility indicated the Veteran had 3 months and 12 days of full-time benefits. In March 2011, the Veteran filed a notice of disagreement and indicated that she was misinformed and misunderstood the benefits available to her. She also indicated that she wanted the benefit of the 12 month extension, and that she wanted 3 months and 12 days of her chapter 30 benefits back. In denying the Veteran's request, the RO determined that the Veteran's election of benefits under the Post-9/11 GI Bill program was irrevocable. The Veteran provided testimony at a August 2011 Board hearing and explained that she was wrongly informed by VA, sometime between December 2010 and January 2011, that her chapter 30 benefits had been exhausted, and this was why she filed her election for chapter 33 benefits in February 2011. She had no intention giving up her remaining chapter 30 benefits, and in fact wanted to use those plus an additional 12 months of chapter 33 benefits. She testified that she called VA in December 2010 when she received a letter telling her she had 3 months and 12 days of chapter 30 benefits left. She testified that she was told by VA personnel at that time that her benefits ended in January 2011, so she waited until February to apply for chapter 33 benefits. As such, she wants in essence to rescind her election and complete her Chapter 30 benefits and then reap the benefits of the 12 month extension under Chapter 33. Consistent with the Veteran's testimony, the record contains a VA letter to the Veteran dated in October 2010 and enrollment certification information from the University of Southern Mississippi indicating that the Veteran had 3 months and 12 days of chapter 30 benefits remaining as of December 10, 2010. In accordance with 38 C.F.R. § 21.9520(c)(1)(i), an individual is eligible for Chapter 33 benefits if he has met the minimum service requirements in paragraph (a) and (b), and then makes an irrevocable election to receive benefits under 38 U.S.C. chapter 33 by relinquishing eligibility under either 38 U.S.C. chapter 30, or 10 U.S.C. chapter 106a, 1606, or 1607. Pursuant to 38 C.F.R. § 21.9520(c)(2), an individual may make an irrevocable election to receive benefits under this chapter by properly completing VA Form 22-1990, submitting a transfer-of-entitlement designation under this chapter to the Department of Defense, or submitting a written statement that includes the following: (i) identification information (including the name, social security number and address); (ii) if applicable, an election to receive benefits under chapter 33 in lieu of benefits under one of the applicable chapters listed in paragraph (c)(1)(i) of this section (e.g., 'I elect to receive benefits under the Post-9/11-GI Bill in lieu of benefits under the Montgomery GI Bill-Active Duty (chapter 30) program.'); (iii) the date the individual wants the election to be effective (e.g., 'I want this election to take effect on August 1, 2009.'). An election request for an effective date prior to August 1, 2009, will automatically be effective August 1, 2009; and (iv) an acknowledgement that the election is irrevocable (e.g., 'I understand that my election is irrevocable and may not be changed.'). The criteria listed under 38 C.F.R. §21.9520(c)(2) are disjunctive rather than conjunctive which means only one of the requirements under this provision must be met for irrevocability to occur. See Drosky v. Brown, 10 Vet. App. 251, 255 (1997)(noting that the Board erred in reading a requirement as conjunctive rather than disjunctive as contemplated by the word "or" between two symptoms in the rating criteria at issue.); Johnson v. Brown, 7 Vet. App. 95, 97 (1994)(agreeing with VA's interpretation that the criteria in 38 C.F.R. § 4.132, DC 9411 (1994) for a 100% rating were each independent bases for granting such rating). Thus, based on the above-referenced regulatory provisions, an election to receive benefits under Chapter 33 can become irrevocable upon completion and submission of a VA Form 22-1990. In the alternative, a Veteran has the option to either submit a transfer-of-entitlement designation under this chapter to the Department of Defense, or submit a written statement which includes the four specified criteria listed under 38 C.F.R. §21.9520(c)(2)(i)-(iv) in order for irrevocability to occur. If a Veteran has opted to submit a written statement, then his or her election to receive benefits under Chapter 33 becomes irrevocable only when all four specified criteria are met. In this case, the irrevocability criteria listed under 38 C.F.R. § 21.9520(c)(2) have been met, as the record contains a fully completed electronic (online) application Form 22-1990. Although this document does not contain an acknowledgement on the part of the Veteran reflecting awareness of the irrevocability criteria, the regulation does not explicitly impose this requirement on VA Form 22-1990. Indeed, the regulation does not specify that a completed VA Form 22-1990 must include a statement from the Veteran acknowledging that her election for Post-9/11 GI Bill program in lieu of benefits under the MGIB program is irrevocable. The regulation only requires that VA Form 22-1990 be properly completed for irrevocability to take effect. In other words, acknowledgement by the Veteran that her election for Chapter 33 benefits in lieu of Chapter 30 benefits is irrevocable is only necessary when the Veteran has opted to submit a written statement seeking Chapter 33 benefits, as an alternative to properly completing the VA Form 22-1990 or submitting a transfer-of-entitlement designation under this chapter to the Department of Defense for these benefits. Moreover, the United States Court of Appeals for Veterans Claims (Court) has applied a presumption of regularity to all manner of VA processes and procedures. See Woods v. Gober, 14 Vet. App. 214, 220 (2000) (citing INS v. Miranda, 459 U.S. 14, 18 (1982); United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926). Thus, VA's electronic application program is deemed to have been properly developed to comply with the legal requirements for these benefits, including the irrevocable election as required under 38 C.F.R. § 21.9520(c)(1)(i). Further, a review of VA's website for filing the electronic application, http://www.gibill.va.gov, includes general information noting that the election for benefits under the Post-9/11 GI Bill is irrevocable. See http://www.gibill.va.gov/documents/pamphlets/ch33_pamphlet.pdf. Parenthetically, the Board notes that the application indicates that the Veteran answered "yes" to the question of whether she received an information pamphlet. Thus, the Board finds that the irrevocability requirements set forth under 38 C.F.R. § 21.9520(c)(2) have been met and that the Veteran did make an irrevocable election for educational benefits under the Post-9/11 GI Bill program when she completed the electronic (online) application. As such, her election for Post-9/11 GI Bill benefits is irrevocable and cannot be rescinded. The Board notes that in point of fact the Veteran has testified candidly to a general awareness of the fact that the election was irrevocable inasmuch as she has maintained that she sought to exhaust her chapter 30 benefits before electing to receive chapter 33 benefits. This was because she wanted to use both the remaining 3 months and 12 days of chapter 30 benefits and 12 months of chapter 33 benefits. This is certainly understandable. In asserting this argument, she is instead alleging error on the part of VA personnel in providing her misinformation as to the amount of benefits she had remaining. The Board regrets that the Veteran may have misunderstood the benefits available to her, but the Board is bound by the applicable law and regulations when determining a claim for VA benefits. Regardless of the equities of the Veteran's situation, VA can only pay benefits that are authorized by law. See McTighe v. Brown, 7 Vet. App. 29, 30 (1994) ("[P]ayment of government benefits must be authorized by statute; therefore, erroneous advice given by a government employee cannot be used to estop the government from denying benefits."). It has been observed that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992) [citing Office of Personnel Management [CONTINUED ON NEXT PAGE] v. Richmond, 496 U.S. 414, 426 (1990)]. Thus, the Board has no discretion to afford benefits where basic eligibility is not established under the law. ORDER The appeal is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs