Citation Nr: 1337040 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 11-16 906 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to education benefits under 38 U.S.C.A., Chapter 30, the Montgomery GI Bill (MGIB). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from August 1988 to May 1990. Further, the record reflects he had additional service in the National Guard/Reserves. This matter is before the Board of Veterans' Appeals (Board) on appeal from a decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, that the Veteran was not entitled to education benefits under the MGIB. The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in September 2011. A transcript of this hearing has been associated with the Veteran's VA claims folder. As an additional matter, the Board observes that the decision in this case only related to the Veteran's eligibility for educational benefits under Chapter 30 of Title 38 of the United States Code (MGIB). For example, it did not formally adjudicate whether the Veteran was entitled to education benefits under Chapter 32 of Title 38 of the United States Code, the Post-Vietnam Era Veterans' Educational Assistance Act Program (VEAP). The Statement of the Case (SOC) did note that the Department of Defense (DOD) had indicated the Veteran had been AGR under Title 32 since January 2009, but that such service was not for consideration in regard to his claim for educational assistance under MGIB. To the extent a claim for educational benefits under a program other MGIB was not adjudicated below, it is referred to the agency of original jurisdiction (AOJ) for appropriate action. FINDINGS OF FACT 1. The record reflects the Veteran's service for the August 1988 to May 1990 period of active duty was characterized as "under other than honorable conditions." 2. The record does not otherwise reflect the Veteran had a two year period of continuous active duty for the purposes of the MGIB educational benefits for which he received an honorable discharge. CONCLUSION OF LAW The criteria for education benefits under 38 U.S.C.A., Chapter 30, the MGIB, are not met. 38 U.S.C.A. §§ 3001, 3011, 3012 (West 2002); 38 C.F.R. §§ 21.7040, 21.7042 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Board also notes, however, that 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 claims under Chapter 30, not the VCAA. Under 38 C.F.R. § 21.1031(b) "if a formal claim for educational assistance is incomplete, or if VA requires additional information or evidence to adjudicate the claim, VA will notify the claimant of the evidence and/or information necessary to complete or adjudicate the claim and the time limit provisions of § 21.1032(d)." In this case, the record does not reflect the Veteran's formal claim for educational assistance under MGIB was incomplete. Rather, as detailed below, the resolution of this case depends upon the uncontested nature of the Veteran's periods of military service, to include whether it was active duty or Reserve service as well as the character of his discharge. The Board further notes that the provisions of the VCAA have no effect on an appeal, as in the case here, 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 any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice or lack thereof. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The Board adds that general due process considerations have been satisfied. See 38 C.F.R. § 3.103. The Veteran has been provided ample opportunity to present evidence and argument in support of his claim, and he has in fact done so. For example, as noted in the Introduction, he testified at a hearing before the undersigned VLJ in September 2011. With respect to the aforementioned September 2011 hearing, the Board is cognizant that the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or 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 the hearing, the VLJ identified the current appellate issue, and asked questions to clarify the Veteran's contentions. Moreover, the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. Finally, the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the September 2011 hearing. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). With regard to MGIB educational assistance benefits under the provisions of Chapter 30, Title 38, United States Code, this program provides assistance in the readjustment of members of the Armed Forces to civilian life after their separation from military service. 38 U.S.C.A. § 3001. The program is available to individuals who meet certain criteria of basic eligibility, including active duty during certain prescribed dates or meeting certain other criteria for basic eligibility for educational assistance. 38 U.S.C.A. § 3011; 38 C.F.R. §§ 21.7040, 21.7042. 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) (1) (A) (i) ; 38 C.F.R. § 21.7042(a) (1)- (2). In addition, an individual may establish eligibility for basic educational assistance based on a combination of service on active duty and service in the Selected Reserve. Eligibility for basic educational assistance under Chapter 30 based on a combination of service on active duty and service in the Selected Reserve is known as the "2x4" program. The individual must, after June 30, 1985, either first become a member of the Armed Forces, or first enter on active duty as a member of the Armed Forces. 38 U.S.C.A. § 3012(a)(1); 38 C.F.R. § 21.7042(b)(1). The individual before completing the service requirements must either complete the requirements of a high school diploma (or an equivalency certificate), or successfully complete (or otherwise receive academic credit for) 12 semester hours (or the equivalent) in a program of education leading to a standard college degree. 38 U.S.C.A. § 3012(a)(2) ; 38 C.F.R. § 21.7042(b)(2) . The individual must serve at least two years of continuous active duty in the Armed Forces characterized by the Secretary concerned as honorable service. 38 U.S.C.A. § 3012(a)(1) ; 38 C.F.R. § 21.7042(b)(3). After completion of active duty service, the individual must serve at least four continuous years of service in the Selected Reserve. An individual whose release from active duty service occurs after December 17, 1989, must begin this service in the Selected Reserve within one year from the date of his or her release from active duty. During this period of service in the Selected Reserve the individual must satisfactorily participate in training as prescribed by the Secretary concerned. 38 U.S.C.A. § 3012(a)(1); 38 C.F.R. § 21.7042(b)(4). The individual must, after completion of all service described above, be discharged from service with an honorable discharge, placed on the retired list, or transferred to the Standby Reserve or an element of the Ready Reserve other than the Selected Reserve after service in the Selected Reserve characterized by the Secretary concerned as honorable service. In the alternative, the individual may continue on active duty or in the Selected Reserve. 38 U.S.C.A. § 3012(a)(3) ; 38 C.F.R. § 21.7042(b)(5). Regardless of whether a claimant is seeking MGIB educational benefits based solely upon active duty service or a combination of active duty and Reserve service, the law mandates that he or she must have received an honorable discharge from these periods of service in order to be eligible for these educational benefits. In this case, the Board acknowledges the record reflects the Veteran has had active duty periods with the National Guard from April 2005 to November 2005, November 2005 to November 2006, July 2007 to July 2008, January 2009 to October 2009, for which he received an honorable discharge. There is also evidence that he was called to active service in the National Guard in January 2010, and that he testified at his September 2011 hearing that he was still performing such service. However, the record reflects he received an other than honorable conditions discharge for his August 1988 to May 1990 period of active duty. In short, he did not receive an honorable discharge for this period of active duty, at least with respect to satisfying the basic eligibility requirements for MGIB education benefits. The record does not reflect the Veteran otherwise had a two year period of continuous active duty for the purposes of the MGIB educational benefits for which he received an honorable discharge. In view of the foregoing, the Board must find that the uncontested facts of this case reflect the Veteran does not satisfy the basic eligibility requirement for MGIB education benefits under 38 C.F.R. § 21.7042. The Board acknowledges that 38 C.F.R. § 21.7044 provides that MGIB benefits may also be available for certain individuals who had eligibility for former Vietnam Era GI Bill (Chapter 34) participants. However, there is no indication in the record the Veteran had been such a participant, nor does he contend otherwise. Therefore, these provisions are not for consideration in the instant case. For these reasons, the Board finds that the appeal must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (Where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit). (CONTINUED ON NEXT PAGE) ORDER Education benefits under 38 U.S.C.A. Chapter 30, the MGIB, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs