Citation Nr: 1340869 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 07-29 989 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to VA educational assistance benefits under 10 U.S.C. § chapter 1606, the Montgomery GI Bill for Selected Reserves (MGIB-SR). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The appellant served on active duty for training purposes from February 2003 to July 2003. He also has verified service in the Selected Reserve for the periods from November 1993 to May 1995 and from April 2005 through the present. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Louis, Missouri. In March 2009 the Board remanded the case for further action by the originating agency. The case has now returned to the Board for further appellate action. FINDINGS OF FACT 1. The appellant separated from the Selected Reserves in May 1995; he did not reenlist in the Selected Reserves until April 2005. 2. The Department of Defense (DOD) has determined that the appellant is not eligible for educational assistance under Chapter 1606, Title 10, of the United States Code, MGIB-SR. CONCLUSION OF LAW The criteria for eligibility for MGIB-SR educational assistance benefits have not been met. 10 U.S.C.A. § 16132 (West 2002); 38 C.F.R. §§ 21.7540, 21.7550 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant contends that he is entitled to VA educational assistance benefits under the MGIB-SR (also known as Chapter 1606 benefits). 10 U.S.C.A § chapter 1606 (West 2002); 38 C.F.R. §§ 21.7500 to 21.7807 (2013). Qualified members of the Selected Reserve are entitled, under Chapter 1606, to an educational assistance allowance when pursuing a program of education. 10 U.S.C.A. § 16131. A reservist is eligible to receive benefits under Chapter 1606 if several requirements are met. See 10 U.S.C. § chapter 1606; 38 C.F.R. §§ 21.7500 to 21.7807. The period of eligibility expires, generally, on the last day of the 10-year period beginning on the date the reservist becomes eligible for educational assistance or, if earlier, the date the reservist is separated from the Selected Reserves. 38 C.F.R. § 21.7550(a). A reservist who has separated from the Selected Reserve may reestablish eligibility for Chapter 1606 benefits by rejoining the Selected Reserve within one year from the date of separation. VA EDUCATION PROCEDURES MANUAL M22-4 (M22-4), PART VIII, CH. 1, ¶ 1.03 (July 7, 2011). The Armed Forces will determine whether an individual meets the eligibility criteria needed to receive educational assistance under Chapter 1606. 10 U.S.C.A. § 16132; 38 C.F.R. § 21.7540(a). Such determination is binding upon VA. Id; see also 38 C.F.R. § 21.1034. The appellant was previously enlisted in the Selected Reserve and was eligible for Chapter 1606 benefits for the period from November 1993 through May 1995. The appellant's eligibility was terminated when he left the Selected Reserve in May 1995. 10 U.S.C.A. § 16133(a); 38 C.F.R. §§ 21.7540(a) (3); 21.7550(a)(2). VA records reflect that the appellant used approximately 5 of his 36 months of VA educational assistance benefits. In April 2005, the appellant reenlisted in the Selected Reserve through the Air National Guard. See DD Form 2384-1 ("Notice of Basic Eligibility" (NOBE)) received by VA on May 16, 2007. In December 2006, the appellant reapplied for VA educational assistance benefits under Chapter 1606. The RO denied the appellant's claim in the February 2007 administrative decision on appeal. The RO found that the appellant's Chapter 1606 eligibility was terminated when he left the Selected Reserves on May 19, 1995. Although he later reenlisted in the Selected Reserves, his eligibility was not reestablished as he did not reenlist within one year from May 1995 in accordance with the M22-4. The record contains some evidence in support of the appellant's claim. The appellant submitted a NOBE, signed by a Commanding Officer or Designee in December 2006, indicating that he meets the eligibility criteria for the Selected Reserve Educational Assistance program authorized in Chapter 1606 from April 30, 2005. The appellant also submitted a copy of a "Written Agreement for MGIB-SR Kicker," executed in December 2006. Additionally, a June 27, 2007 print-out from the DOD shows that the appellant is eligible for Chapter 1606 benefits, including a kicker, effective April 30, 2005, by reason of an "initial period of service." The Board remanded the claim in March 2013 to obtain clarification from the DOD as to whether the appellant is eligible for Chapter 1606 assistance. In March 2013, the DOD provided information clearly stating that the appellant is not currently eligible for educational assistance under Chapter 1606. His eligibility was terminated when he left the Selected Reserves (and joined the Individual Ready Reserves) and did not reaffilitate with the Selected Reserves within one year. The DOD further noted that the appellant cannot "get back" Chapter 1606 benefits. Regarding the June 27, 2007 print-out indicating the appellant was eligible for educational assistance, the DOD stated that its previous records were incorrect and based on erroneous information provided by the Air National Guard. The appellant does not dispute that he was discharged from the Selected Reserve in May 1995. He also does not dispute that he did not reenlist in the Selected Reserve until years later. The Board recognizes and understands the appellant's contentions in this case that he was notified by his unit that he was eligible for Chapter 1606 benefits. This, however, is a DOD determination and not a unit determination. M22-4, Part VIII, CH. 3, ¶ 3.07 (July 7, 2011). Furthermore, the VA (and, as such, the Board) is bound to accept any determination made by DOD regarding a claimant's Chapter 1606 eligibility. See 10 U.S.C.A. § 16132; 38 C.F.R. §§ 21.1034, 21.7540(a). The regulations clearly reflect that determinations of eligibility dates for Chapter 1606 benefits are within the sole purview of the Armed Forces. No such authority has been delegated to any other source. See 10 U.S.C.A. § 16132; 38 C.F.R. §§ 21.1034, 21.7540(a). VA is charged with administering the law as it is written and, as noted above, governing legal criteria specifically exclude an award of benefits absent the establishment of eligibility by DOD. In this case, the Board is without legal authority to grant the benefit sought on appeal. See 38 U.S.C.A. §§ 503, 7104(c) (West 2002); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Accordingly, the appellant's claim for educational assistance under the MGIB-SR must be denied. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duties to notify and assist claimants. For educational assistance claims, the regulations delineating the specific notification and assistance requirements are set forth in 38 C.F.R. §§ 21.1031, 21.1032 (2013). In this case, however, the essential facts are not in dispute; the case rests solely on the interpretation and application of the relevant law. The VCAA does not affect matters on appeal when the issue is limited to statutory interpretation. See Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also VAOPGCPREC 2-04, 69 Fed. Reg. 25180 (2004) (holding that VCAA notice was not required where evidence could not establish entitlement to the benefit claimed). There is no possibility that any additional notice or development would aid the appellant in substantiating his claim. 38 U.S.C.A. §§ 5103, 5103A.. Thus, any deficiency of notice or of the duty to assist constitutes harmless error. The Board remanded this appeal in March 2009 to obtain clarification as to the appellant's eligibility for Chapter 1606 benefits with the DOD. The Board also ordered that the originating agency should issue a supplemental statement of the case (SSOC) with citations to the applicable statutory and/or regulatory authority used to support the initial basis for the RO's denial (i.e., that a reservist is only able to reestablish his eligibility to Chapter 1606 benefits if he returns to the Selected Reserves within one year of his date of separation). The DOD was contacted in March 2013 and provided unambiguous information establishing that the appellant is not currently eligible for education assistance under the MGIB-SR. A SSOC was also issued in March 2013 continuing the denial of the appellant's claim. The SSOC did not include the citations requested by the Board. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). However, the Board also has an interest in avoiding remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Although the March 2013 SSOC did not include the citations requested by the Board, the Board has determined that the authority for the initial denial of the appellant's claim is contained in the M22-4. Therefore, the lack of compliance with the Board's remand order does not affect "the essential fairness" of the adjudication, and such error is not prejudicial and should not prevent the Board from proceeding with its determination. Mayfield v. Nicholson, 19 Vet. App. 103, 116 (2005). ORDER Entitlement to VA educational assistance benefits under 10 U.S.C. § chapter 1606, the MGIB-SR, is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs