Citation Nr: 1337779 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 11-09 926 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to additional Department of Veterans Affairs (VA) educational assistance benefits under the Post 9-11 GI Bill (Chapter 33). ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant served on active duty from May 1979 to April 1985, from October 2001 to July 2002, from November 2004 to December 2005, from April 2006 to June 2006, and from August 2007 to September 2007. This matter comes before the Board of Veterans' Appeals, hereinafter the Board, on appeal from rating decision of September 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. FINDINGS OF FACT 1. The appellant has received 27 months of education benefits under Chapter 32 (Veterans' Educational Assistance Benefits) (VEAP) and 15 months, 9 days of education benefits under Chapter 1607 (Reserves Educational Assistance Benefits) (REAP), for an aggregate of 42 months, 9 days of educational assistance benefits. 2. The maximum amount of educational benefits by law that the appellant may receive is 48 months. 3. The appellant has 5 months, 21 days of available education benefits under the provisions of Post 9-11 GI Bill, Chapter 33, of Title 38, United States Code. CONCLUSION OF LAW The requirements for payment of additional educational benefits beyond the five months, 21 days of currently available education benefits under 38 U.S.C.A. § Chapter 33 Post-9/11 GI Bill have not been met. 38 U.S.C.A. §§ 3301, 24 (West 2002 & Supp. 2012); 38 C.F.R. §§ 21.9500-21.9770 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000) (Board must address its reasons for rejecting evidence favorable to the appellant). Also, the Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Veterans Claims Assistance Act of 2000 As provided by the Veterans Claims Assistance Act of 2000 (VCAA), the 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 & Supp. 2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2013). Notice is not required in this case since the benefits sought are found in Chapter 30 of Title 38, United States Code. See Simms v. Nicholson, 19 Vet. App. 453, 456 (2007) (holding that the VCAA applied only to the award of benefits under Chapter 51, Title 38, Untied States Code); Barger v. Principi, 16 Vet. App. 132, 138 (2002) (the notice and duty to assist provisions of the [VCAA] . . . are relevant to a different Chapter of Title 38 and do not apply to this appeal). Also, in the present case, 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. Laws and Regulations - Education Benefits There are three education benefit programs involved in consideration of this appeal. There is the Post-Vietnam Era Education Program (VEAP), codified in Chapter 32 of Title 38 US Code, the Reserves Educational Assistance Program (REAP), codified at Chapter 1607 of Title 10 US Code, and the Post 9/11 GI Bill Codified in Chapter 33 of Title 38 US Code. Chapter 32 of Title 38, US Code, sets forth provisions to allow for educational assistance for members of the Armed Forces after their separation from military service. See 38 U.S.C.A. §§ 3201 - 3243. A threshold requirement for Chapter 32 educational assistance is the completion of certain requisite service. In order to be entitled to Chapter 32 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 January 1, 1977, and before July 1, 1985, but not be eligible under Chapter 34 of Title 38, US Code, and must have served on at least 181 days of active duty or have been discharged from active duty for a service-connected disability. The individual must enroll in the educational benefits program during the period of active duty and participate for at least 12 consecutive months. A person electing to participate in the program shall agree to have a monthly deduction made from his or her military pay. See 38 U.S.C.A. §§3221(a), 3222(a) (Wes 2002); 38 C.F.R. §§21.5040(a), 20.5052(a) (2013). Chapter 1607 of Title 10, US Code, the Reserve Educational Assistance Program (REAP) is an educational assistance program enacted by Congress to provide benefits to members of the reserve components who are called or ordered to "active service" in response to a war or national emergency as declared by the President or Congress. An individual may be eligible for REAP benefits if the individual met the following requirements: (1) Served on active duty on or after September 11, 2001, in support of a contingency operation for 90 consecutive days or more; or (2) Performed full-time National Guard duty under section 502 (f) of title 32 for 90 consecutive days or more when authorized by the President or Secretary of Defense for the purpose of responding to a national emergency declared by the President and supported by Federal funds; or (3) A member called or ordered to active service while serving in the Selected Reserve remains entitled to benefits under REAP only by continuing to serve in the Selected Reserve. A member called or ordered to active service from the Individual Ready Reserve (IRR) remains entitled to benefits under REAP by continuing to serve in the Ready Reserve (either Selected Reserve or IRR). Chapter 33 of Title 38, US Code, sets forth provisions to allow for education assistance for members of the Armed Forces after their separation from military service. See 38 U.S.C.A. §§ 3301 - 3324 (West 2002 & Supp. 2012). A threshold requirement for Chapter 33 educational assistance is the completion of certain requisite service. In order to be entitled to Chapter 33 educational assistance, an individual must first show that he had active service after September 10, 2001, meet certain minimum service requirements, and make an irrevocable election to receive benefits under 38 U.S.C.A. Chapter 33. 38 C.F.R. § 21.9520 (2013). 38 U.S.C.A. § 3695 (Limitation on period of assistance under two or more programs), section (a) (West 2002 & Supp. 2012), provides as follows: (a) The aggregate period for which any person may receive assistance under two or more the provisions of law listed below may not exceed 48 months (or the part-time equivalent thereof): (1) Parts VII or VIII, Veterans Regulation number 1(a), as amended. (2) Title II of the Veterans' Readjustment Assistance Act of 1952. (3) The War Orphans' Educational Assistance Act of 1956. (4) Chapters 30, 32, 33, 34, 35, and 36. (5) Chapter 107, 1606, 1607, and 1611 of Title 10. (6) Section 903 of the Department of Defense Authorization Act, 1981 (Public Law 96-342, 10 U.S.C. 2141 note). (7) The Hostage Relief Act of 1980 (Public Law 96-449, 5 U.S.C. 5561 note). (8) The Omnibus Diplomatic Security and Antiterrorism Act of 1986 (Public Law 99-399). Thus, under 38 U.S.C.A. § 3695(a)(4), a veteran may not receive more than 48 months of education benefits combined under Chapters 32 and 33 of U.S.C. Title 38, and Chapter 1607 of Title 10. In this instance, the record shows that the appellant received 27 months of VEAP benefits (Chapter 32) and 15 months, 9 days of REAP benefits (Chapter 1607). The appellant has not contended that he did not receive VEAP and REAP benefits for the months and days noted. The aggregate amount of benefits awarded is 42 months, 9 days. As noted above, 38 U.S.C.A. Section 3695(a)(4) (West 2002) is very specific and dictates that a veteran may only receive 48 months of educational benefits. This means that if the appellant would like to use educational benefits under the Post 9-11 GI Bill (Chapter 33), he only has 5 months, 21 days left of entitlement. The appellant asserts that his time in the VEAP program should not count against his aggregate allowable 48 months, because that was a "contributory" program rather than an "assistance" program. However, as the VEAP program is found under Chapter 32 of Title 38, US Code, it is clearly to be considered in the aggregate calculation. See 38 U.S.C.A. § 3695; 38 C.F.R. § 21.4020. While the Board is sympathetic to the appellant's frustration in not having additional benefits to use, VA (including the Board) is bound by the applicable law and regulations as written. 38 U.S.C.A. § 7104(c) (West 2002). The Board appreciates the appellant and the service member's forthright statements. However, the Board is without authority to grant additional benefits simply on the basis that it might be perceived as equitable. See 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). The legal criteria governing the payment of educational assistance benefits are clear and specific and the Board is without the authority to disregard the applicable law, notwithstanding any extenuating circumstances that may have existed at the relevant time in question. Congress did not enact any exceptions to the above-discussed legal provisions that would permit a grant of the requested benefit. As the disposition of this claim is based on the law, and not on the facts of the case, the claim must therefore be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Moreover, because the law, rather than the facts of the case, is controlling, the provisions of 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012) are not for application. Accordingly, the greatest amount of Chapter 33 (post-September 11, 2001, VA education benefits) full-time education benefits to which the appellant may be entitled thereto is 48 months less the 27 months already used by the appellant under Chapter 32 minus the 15 months, 9 days already used by the appellant under Chapter 1607. This equals a period of 5 months, 21 days of full-time education benefits. As a result, the claim for a period of Chapter 33 full-time education benefits of greater than 5 months, 21 days is not warranted under the law. The appellant's claim is denied. ORDER Entitlement to additional Department of Veterans Affairs (VA) educational assistance benefits under the Post 9-11 GI Bill (Chapter 33) is denied. ____________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs