Citation Nr: 1338104 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 13-22 852 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to additional Department of Veterans Affairs (VA) educational assistance benefits in excess of 12 months and 27 days under Chapter 33, Title 38, United States Code (known as the Post-9/11 GI Bill). ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from June 1996 to April 1999. He had additional service as a National Guardsman, which service included a period of active duty for training from April 10, 2009, to July 31, 2009, and a period of active duty from March 17, 2010, to March 3, 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. FINDINGS OF FACT 1. The Veteran previously completed 23 months and 3 days of entitlement to Chapter 30 educational assistance benefits; there were 12 months and 27 days remaining on his entitlement as of June 2012. 2. Effective June 10, 2012, the Veteran made an irrevocable election to transfer his remaining entitlement to educational assistance benefits under Chapter 30 to Chapter 33 educational assistance benefits; in proceeding with this election, he evidently believed that the new Post-9/11 GI Bill would afford him 12 months of additional educational assistance benefits, for a total of 24 months and 27 days of entitlement. 3. Under VA law, the Veteran was permitted to transfer no more than 12 months and 27 days of educational assistance entitlement; there is no provision in the law that would afford him an additional 12 months of entitlement under the Post-9/11 GI Bill. CONCLUSION OF LAW The Veteran has no legal entitlement to VA educational assistance benefits in excess of 12 months and 27 days (as of June 10, 2012) under Chapter 33, Title 38, United States Code. 38 U.S.C.A. § 3319 (West 2002 & Supp. 2013); 38 C.F.R. §§ 21.4020, 21.9550 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). For educational assistance claims, including the Post-9/11 GI Bill, the regulations delineating the specific notification and assistance requirements are set forth in 38 C.F.R. §§ 21.1031, 21.1032 (2013). See 38 C.F.R. § 21.9510 (2013). Where, as here, the law is dispositive in a matter, the notice provisions of the VCAA and, by analogy, the comparable educational assistance provisions, have no effect. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). That is because no further notice or assistance to the claimant would result in a different outcome because, as will be addressed below, the facts make clear that entitlement to educational assistance benefits in excess of 12 months and 27 days under the Post-9/11 GI Bill are not warranted as a matter of law. See Manning v. Principi, 16 Vet. App. 534, 542-543 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004; see also Mason v. Principi, 16 Vet. App. 129 (2002) (the veteran did not serve on active duty during a period of war and was not eligible for nonservice-connected pension benefits; because the law as mandated by statute, and not the evidence, is dispositive of the claim, the VCAA is not applicable); Livesay v. Principi, 15 Vet. App. 165 (2001) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law). II. Analysis At issue in this case is not the Veteran's basic eligibility for Chapter 33 educational assistance benefits, as VA found him to be eligible for the receipt of these benefits based on his 369 days continuous days of active duty service after September 10, 2001. Rather, the issue in this case involves computation of the total amount of Chapter 33 educational assessment benefits to which the Veteran is eligible. In this regard, the Board notes that the Veteran has stated that he does "not disagree with the [RO's] findings," but rather, "disagree[s] with the clarity of [VA's] system." A review of the record shows that in May 2012, VA received the Veteran's electronic application for VA educational assistance benefits, wherein the Veteran requested benefits under the Post-9/11 GI Bill. The application informed the Veteran that by electing to receive benefits under the Post-9/11 GI Bill in lieu of receiving benefits under Chapter 30, Title 38, United States Code (the Montgomery GI Bill-Active Duty (MGIB-AD)), his benefits would be limited to the number of months of entitlement remaining under Chapter 30 on the effective date of the election. The application further indicated that if he exhausted his entitlement under Chapter 30, he could receive up to 12 additional months of benefits under Chapter 33. The Veteran was also informed that electing to receive Chapter 33 benefits in lieu of Chapter 30 benefits was irrevocable and could not be changed. The Veteran was thereafter contacted with a request for further information concerning his election of Post-9/11 GI Bill benefits, to which he responded in June 2012 stating the he was relinquishing his Chapter 30 MGIB-AD benefits in order to receive benefits under the Post-9/11 GI Bill. That same month, the RO issued a Certificate of Eligibility, wherein it was provided that the Veteran was entitled to benefits for an approved program of education or training under the Post-9/11 GI Bill. The RO's letter stated that he had 12 months and 27 days of full-time benefits remaining and that he was entitled to receive 60 percent of the benefits payable under the Post-9/11 GI Bill program based on his 369 days of post-September 10, 2001, active duty service. See 38 C.F.R. § 21.9640(a) (2013) (providing that individuals serving an aggregate period of post-September 10, 2001, active duty of at least 12 months but less than 18 months are eligible for 60 percent of the maximum benefit payable). Relevant records associated with the claims folder show that the Veteran had previously pursued an associate's degree and as of the term ending on December 11, 2002, had 12 months and 27 days of full time benefits remaining under the MGIB-AD. The Veteran does not dispute that he had previously received Chapter 30 educational assistance benefits, nor does he disagree with the RO's computation of benefits used or remaining eligibility. Rather, the Veteran alleges a lack a lack of clarity of VA's system, stating he was not aware that he needed to use his 12 months and 27 days of Chapter 30 benefits prior to electing to receive Chapter 33 benefits in order to be potentially entitled to an additional 12 months of benefits. This case essentially concerns the determination of the amount of benefits an individual may be entitled to receive under the Post-9/11 GI Bill following an irrevocable election for such benefits in lieu of entitlement under another education program. Under governing law, an eligible individual is entitled to a maximum of 36 months of educational assistance (or its equivalent in part-time educational assistance) under the Post-9/11 GI Bill. See 38 C.F.R. § 21.9550 (2013). Where an individual is eligible for two or more education programs, the aggregate period for which any person may receive assistance may not exceed 48 months (or the part-time equivalent). 38 C.F.R. § 21.4020 (2013). An individual's period of entitlement is limited by 38 C.F.R. § 21.9550(b)(1) which states, An individual who, as of August 1, 2009, has used entitlement under 38 U.S.C. chapter 30, but retains unused entitlement under that chapter, makes an irrevocable election to receive educational assistance under the provisions of 38 U.S.C. chapter 33 instead of educational assistance under the provisions of chapter 30, will be limited to one month (or partial month) of entitlement under chapter 33 for each month (or partial month) of unused entitlement under chapter 30 (including any months of chapter 30 entitlement previously transferred to a dependent that the individual has revoked). 38 C.F.R. § 21.9550(b)(1). In short, if an individual is eligible for education benefits under Chapter 30, but uses some of his/her entitlement before irrevocably electing to receive Chapter 33 benefits in lieu of benefits under Chapter 30, that individual may be awarded the equivalent of the entitlement that remained unused under Chapter 30. There is no provision that entitles the individual to 12 additional months of entitlement under Chapter 33 on top of 36 total months of combined benefits under Chapter 30 and 33. 38 C.F.R. § 21.9550(b)(1). Thus, as applied to the facts of this case, when the Veteran elected to receive educational assistance under Chapter 33 in lieu of his benefits under Chapter 30, his entitlement was limited to that portion or amount of his unused Chapter 30 benefits. Therefore, by law he was limited to receive 12 months and 27 days of entitlement under Chapter 33. 38 C.F.R. § 21.9550(b)(1). The law does not grant an additional 12 months of entitlement under Chapter 33 through such an election, as the Veteran appears to have believed at the time he made the election. Although the Veteran alleges that he was not aware that he needed to exhaust his Chapter 30 benefits prior to electing to receive Chapter 33 benefits to be eligible for up to 12 additional months of educational assistance, the online application filed by the Veteran informed him of such, as well notified him that his election was irrevocable. The Board is sympathetic to the Veteran's claim and his financial hardships while seeking to obtain further education. Nonetheless, the Board is bound by the law and is without authority to grant benefits on an equitable basis. 38 U.S.C.A. §§ 503, 7104 (West 2001). The eligibility requirements for educational assistance are prescribed by Congress and regulations enacted by the Armed Forces and VA and neither the RO nor the Board is free to disregard laws and regulations enacted for the administration of VA educational programs. 38 U.S.C.A. § 7104(c) (West 2002); 38 C.F.R. § 20.101(a) (2013); see Harvey v. Brown, 6 Vet. App. 416, 424 (1994) (holding that "the remedy for breach of an alleged obligation cannot involve payment of benefits where the statutory eligibility requirements for those benefits are not met"). For the foregoing reasons, the Board finds that as of the June 2012 effective date of his irrevocable election to transfer his remaining entitlement to educational assistance benefits under Chapter 30 to Chapter 33 educational assistance benefits, the Veteran's educational assistance benefits were limited to the 12 months and 27 days of unused entitlement under Chapter 30. Additional benefits under the Post-9/11 GI Bill are not warranted as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to VA educational assistance benefits in excess of 12 months and 27 days under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill), is denied. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs