Citation Nr: 1335100 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 11-23 636 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Whether the Veteran made an irrevocable election for educational assistance under the Post-9/11 GI BILL program (Chapter 33) in lieu of benefits under the Montgomery GI BILL (MGIB) program (Chapter 30). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from December 2003 to December 2007. This matter comes to the Board of Veterans' Appeals (Board) from a May 2011 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); the transcript is of record. FINDINGS OF FACT 1. In April 2010, the RO issued a letter to the Veteran notifying him that he was eligible to receive benefits under the Post-9/11 GI Bill and had 8 months and 28 days of full time benefits. 2. In September 2010, the Veteran filed an application for educational assistance under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) which included an irrevocable election of Chapter 33 benefits in lieu of educational assistance under Chapter 30, Title 38, United States Code (Montgomery GI Bill). 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 & Supp. 2012); 38 C.F.R. § 21.9520, 21.9550 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). 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 (the 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. 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. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during a February 2012 Board hearing, the undersigned VLJ fully stated the education benefits issue on appeal. The Veteran's representative asked questions to ascertain the extent of any potential pertinent outstanding evidence. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran. Through the testimony of the Veteran and his representative, it was demonstrated that they had actual knowledge of the elements necessary to substantiate the claim for education benefits. The Veteran and his representative did not suggest any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Criteria & Analysis The Veteran was in receipt of education benefits pursuant to Chapter 30 due to attendance at a qualifying institution. In April 2010 correspondence from the Regional Processing Office in Buffalo, New York, the Veteran was informed that he was entitled to benefits under the Post-9/11 GI Bill (Chapter 33) program. He was notified that he has 8 months and 28 days of full time benefits and is entitled to receive 100 percent of the benefits payable under the Post-9/11 GI Bill program. The Veteran was informed that individuals electing to receive Post-9/11 GI Bill benefits by relinquishing eligibility under the Montgomery GI Bill (MGIB), Montgomery GI Bill - Selected Reserve (MGIB-SR), or Reserve Educational Assistance Program (REAP) can also receive educational assistance for training programs that are not authorized to be available under the provisions of the Post-9/11 GI Bill but are available under the relinquished benefit. The educational assistance program under Chapter 33 (or the post-9/11 GI Bill) was established for "individuals who served on active duty after September 10, 2001" and was made effective in August 2009. 38 C.F.R. § 21.9500. In September 2010, the RO received the Veteran's electronically filed application (VA Form 22-1990) for benefits under the Post-9/11 GI Bill. In September 2010, the RO notified the Veteran that he was awarded education benefits under the Post-9/11 GI Bill at the 100 percent rate for attendance at a qualifying institution from August to December 2010. He was notified that as of December 11, 2010, he had 5 months and 9 days remaining and that he would remain eligible under the Post-9/11 GI Bill until December 29, 2022. In October 2010, the RO received the Veteran's electronically filed application (VA Form 22-1990) for benefits under the Post-9/11 GI Bill. In February 2011, the RO notified the Veteran that he was awarded education benefits under the Post-9/11 GI Bill at the 100 percent rate for attendance at a qualifying institution from January to May 2011. He was notified that as of May 11, 2011, he had 9 days remaining and that he would remain eligible under the Post-9/11 GI Bill until December 29, 2022. In February and March 2011, the RO received the Veteran's electronically filed applications (VA Form 22-1990) for benefits under the Post-9/11 GI Bill. In May 2011, the RO notified the Veteran of his awarded benefits payable under the Post-9/11 GI Bill program and that as of July 22, 2011 he had no days remaining. In his notice of disagreement, the Veteran requested an extension of his educational benefits under the Post-9/11 GI Bill and argued against the 36-month limitation under the Montgomery GI Bill. The Veteran provided testimony in support of his claim at the February 2012 hearing explaining that he was using educational benefits under the Montgomery GI Bill, with about 8 months left, and he wanted to maximize his benefits. He explained that VA personnel failed to adequately explain the options with regard to exhausting his Montgomery GI Bill benefits and applying for an extension under this program. 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 a 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.'). 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 fully completed electronic (online) applications. Although the documents do 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 his election for Post-9/11 GI Bill program in lieu of benefits under the Montgomery GI Bill 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 his 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 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. Thus, the Board finds that the irrevocability requirements set forth under 38 C.F.R. § 21.9520(c)(2) have been met and the Veteran did make an irrevocable election for educational benefits under the Post-9/11 GI Bill program when he completed the electronic (online) application. As such, his election for Post-9/11 GI Bill benefits is irrevocable and cannot be rescinded. There is no basis under the law to provide a one year extension. The Board regrets that the Veteran may have been misinformed by VA, but is bound by the applicable law and regulations when determining a claim for VA benefits. The Board notes that erroneous advice given by a government employee cannot be used to estop the government form denying benefits. Regardless of the equities of the Veteran's situation (particularly regarding the advice the Veteran apparently received from a VA representative), 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."); Harvey v. Brown, 6 Vet. App. 416, 424 (1994), (the remedy for breach of an alleged obligation cannot involve payment of benefits where the statutory eligibility requirements for those benefits are not met). 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 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. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs