Citation Nr: 1337041	
Decision Date: 11/14/13    Archive Date: 11/26/13

DOCKET NO.  11-13 839	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to educational assistance benefits under the provisions of Chapter 30 of Title 38 of the United States Code (Montgomery GI Bill (MGIB)).


REPRESENTATION

Appellant represented by:	North Carolina Division of Veterans Affairs

WITNESS AT HEARING ON APPEAL

The Veteran
ATTORNEY FOR THE BOARD

J. Castillo, Associate Counsel
 






INTRODUCTION

The Veteran, who is the appellant, served on active duty from March 1995 to August 2007.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2009 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which determined that the Veteran was not eligible for VA educational assistance benefits under the MGIB, based upon the fact that he made an irrevocable election to receive Post-9/11 GI Bill benefits instead.

The Veteran appeared at a hearing before the undersigned Veterans Law Judge in August 2011.  A transcript of the hearing is in the Veteran's file. 
 

FINDING OF FACT

The Veteran submitted to VA a properly completed VA Form 22-1990, whereby he irrevocably elected to receive education benefits under the Post-9/11 GI Bill in lieu of benefits under the MGIB.


CONCLUSION OF LAW

An election to receive Chapter 33 education benefits and relinquish eligibility for Chapter 30 education benefits may not be revoked.  38 C.F.R. § 21.9520(c)(2) (2013). 







VCAA Notice and Assistance

There is no legal basis upon which the claim for VA educational assistance benefits under the MGIB may be awarded.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  The provisions of VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive.  Manning v. Principi, 16 Vet. App. 534, 542-543 (2002).


REASONS AND BASES FOR FINDING AND CONCLUSION

In May 2009, the Veteran submitted a claim for educational benefits via VA Form 22-1990.  On the form, the Veteran selected section 9A, to receive Chapter 33 Post-9/11 GI Bill benefits.  He also completed section 9F, indicating that he was electing to receive Chapter 33 benefits in lieu of Chapter 30 benefits, effective May 12, 2009, and that he understood that such election was irrevocable and may not be changed.  The form was signed and dated, May 12, 2009.

In July 2009, the RO issued a Certificate of Eligibility under the Post-9/11 GI Bill.

Pub. L. 110-252, Title V, § 5003(c), June 30, 2008, 122 Stat. 2375, generally provided that an election of Chapter 33 benefits constituted an irrevocable decision.  In implementing the law, VA promulgated 38 C.F.R. § 21.9520 which sets forth eligibility requirements for Chapter 33 benefits.  The regulation states that an individual may make an irrevocable election to receive benefits under this chapter by properly completing VA Form 22-1990.  38 C.F.R. § 21.9520(c)(2). 

The irrevocability criteria of 38 C.F.R. § 21.9520(c)(2) have been met as the record contains a properly completed VA Form 22-1990 from the Veteran, which clearly indicated an irrevocable election to receive Post-9/11 GI Bill benefits.  



As such, it is not necessary to further discuss the Veteran's entitlement to educational assistance benefits under the provisions of Chapter 30, as he irrevocably elected to receive benefits under Chapter 33. 

The Veteran contends that he never intended to apply for benefits under the Post9/11 GI Bill.  The Veteran maintains that a VA vocational rehabilitation counselor recommended that he complete a VA Form 22-1990 to compare the benefits available under the Post-9/11 GI Bill and the MCIB.

Even if the Veteran received poor advice from a VA employee, the Board is bound by the applicable law and regulations when determining entitlement to VA benefits.  The Veteran's intent or lack of intent does not constitute a basis for the relief the Veteran seeks.  See Morris v. Derwinski, 1 Vet. App. 260, 265 (1991), citing Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-85 (1947) (The Supreme Court has held that everyone dealing with the Government is charged with knowledge of federal statutes and lawfully promulgated agency regulations.).

Therefore, the Board must find that the Veteran made an irrevocable election for educational benefits under the Post-9/11 GI Bill program in lieu of benefits under the MGIB. 


ORDER

Entitlement to educational assistance benefits under Chapter 30 of Title 38 of the United States Code (the Montgomery GI Bill) is denied.


____________________________________________
George E. Guido, Jr.
 Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs