Citation Nr: 1339416 Decision Date: 12/02/13 Archive Date: 12/13/13 DOCKET NO. 10-12 135 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to Post 9/11 GI Bill (Chapter 33) education benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from June 1998 to June 2002. This matter has come before the Board of Veterans' Appeals (Board) on appeal from an August 2009 decision of the St. Louis, Missouri, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The Veteran has used 14 months and 5 days of MGIB (Chapter 30) educational assistance benefits. 2. Additionally, the Veteran has used 33 months and 25 days of Chapter 31 educational assistance benefits. CONCLUSION OF LAW The Veteran has no legal entitlement to additional VA educational assistance benefits under Chapter 33, Title 38, United States Code. 38 U.S.C.A. §§ 3311, 3312, 3313, 3695 (West 2002 & Supp. 2013); 38 C.F.R. § 21.4020 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Under 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 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). The record on appeal does not reflect that the Veteran was notified of the VCAA as required by 38 U.S.C.A. § 5103(a). Nevertheless, as will be explained below, it is the law, and not the evidence, that is dispositive in this case. An opinion from the VA General Counsel holds that VA is not required to provide notice of the information and evidence necessary to substantiate a claim or required to develop evidence to substantiate a claim where the claim cannot be substantiated because there is no legal basis for the claim or because the undisputed facts render the claimant ineligible for the claimed benefit. See VAOPGCPREC 5-2004 (June 23, 2004). Therefore, the Board finds that no further action is necessary under the VCAA. Analysis In July 2009, the Veteran applied for Post-9/11 GI Bill Chapter 33 educational assistance benefits by submitting a VA Form 22-1990. The essential facts of the case are not in dispute. The Veteran has already received educational benefits under the MGIB (Chapter 30) and vocational rehabilitation programs (Chapter 31) for a combined total of 48 months. Specifically, he has used 14 months and 5 days of MGIB educational benefits and 33 months and 25 days of vocational rehabilitation educational benefits. The Veteran has not disputed these calculations. Instead, he seeks additional educational benefits under the Post 9/11 GI Bill based on his service from September 2001 to June 2002. The Veteran has asserted that he is unable to get a job to meet his needs with just an undergraduate degree and that he has been told by potential employers that he was not hired because he lacks experience and/or higher education. As such, he is seeking educational benefits under the Post 9/11 GI Bill to fund completion of a master's degree. 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 U.S.C.A. § 3695; 38 C.F.R. § 21.4020. The Veteran failed to properly complete VA Form 22-1990 as he did not complete question 9F, which applies to situations, like his, wherein the Veteran is seeking Post-9/11 GI Bill Chapter 33 educational assistance benefits but is or was eligible for other education benefits programs like MGIB. Had he done so, he would have been prompted to acknowledge that he could not received more than 48 months total of benefits under multiple education programs. In the context of this case, the Veteran has already used a combined total of 48 months of VA education benefits. There is no provision that entitles the individual to additional periods of entitlement under Chapter 33 on top of 48 total months of combined benefits under Chapters 30 and 31. 38 C.F.R. § 21.4020. There is one exception to the rule in 38 U.S.C.A. § 3695. The Secretary may determine that additional Chapter 31 benefits-beyond the 48-month aggregate period-may be awarded to accomplish the purposes of the rehabilitation program in a veteran's case. 38 U.S.C.A. § 3695(b). However, this is not the question now before the Board. The issue before the Board is whether the Veteran, having already received 48 months of benefits, may receive Chapter 33 benefits. The Board is bound by the law and may not disregard laws and regulations enacted for the administration of VA educational programs. The eligibility requirements for educational assistance are prescribed by Congress and regulations enacted by the Armed Forces and VA. 38 U.S.C.A. § 7104(c); 38 C.F.R. § 20.101(a). Consequently, as the Veteran had previously used a combined 48 months of educational assistance under the vocational rehabilitation program and MGIB, the Veteran has no legal entitlement to any additional VA educational assistance under Chapter 33. It is the law in this case, and not the evidence, that is dispositive of the appeal. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to Post 9/11 GI Bill (Chapter 33) education benefits is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs