Citation Nr: 1340931	
Decision Date: 12/12/13    Archive Date: 12/20/13

DOCKET NO.  08-34 464	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to basic eligibility for educational assistance benefits, to include Montgomery GI Bill (MGIB), Veterans Educational Assistance Program (VEAP), and the National Call to Service (NCS).

(In a separate decision under the same docket number, the Board addresses issues of entitlement to a higher initial disability rating for traumatic brain injury (TBI), multiple service connection claims (claimed as high cholesterol, a right leg injury, rash, gonorrhea, unspecified "trick" ankle, posttraumatic stress disorder (PTSD), a right eye condition and a heart condition) and entitlement to non-service-connected pension. 


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States



WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

A. Spector, Associate Counsel


INTRODUCTION

The Veteran had active duty service from July 1977 to July 1980, and October 1987 to July 1991.

The matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the Veteran's claim for educational benefits.  The Veteran filed a notice of disagreement (NOD) with this determination in August 2008, and timely perfected his appeal in January 2009.

The Veteran testified at a Video Conference hearing before the undersigned Acting Veterans Law Judge in September 2012 as to the issue of entitlement to education benefits.  A transcript of this hearing was prepared and associated with the claims file.

The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claims.  A review of the documents in such file reveals that there are additional records.  These records have been reviewed and considered by the Board.

As a final introductory matter, it does not appear that the issues of entitlement to service connection for sleep apnea, diabetes mellitus, headaches, and neck and jaw pain have been addressed by the agency of original jurisdiction (AOJ).  In the July 2012 Substantive Appeals and NOD form, the Veteran listed the above issues in relation to his time in-service.  As the AOJ has not yet adjudicated the issues of entitlement to service connection for sleep apnea, diabetes mellitus, headaches, and neck and jaw pain, they are referred back to the AOJ for appropriate action.


FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 

2.  The Veteran had active service from July 1977 to July 1980, and October 1987 to July 1991. 

3.  The Veteran did not first enter active duty as a member of the Armed Forces after June 30, 1985. 

4.  The Veteran did not enroll or make contributions to the VEAP program.

5.  The Veteran did not first enter or was on active duty after October 1, 2003.


CONCLUSION OF LAW

The criteria for basic eligibility for educational assistance benefits, to include the MGIB, VEAP and NCS, have not been met.  38 U.S.C.A. § 3011, 3202, 3221, 3222 (West 2002); 38 C.F.R. §§ 21.5040, 21.7040, 21.7044 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

In January 2009, the RO issued a Statement of the Case (SOC) which included a discussion of the facts of the claim, notification of the basis of the decision and a summary of the evidence used to reach that decision.  The Board finds that the Veteran was fully advised of the evidence needed to substantiate his claim and that all relevant evidence necessary for an equitable disposition of the appeal has been obtained.  Although such post-decisional notice does not satisfy VA's duties to notify and assist, it should have put the Veteran on notice of what was needed to substantiate the claim.  The Veteran has had more than three years since the SOC to submit additional evidence and argument, and was afforded a hearing in September 2012. 

While the Veteran has not received notification of VA's duties to notify and assist, these requirements do not apply to education cases.  See 38 C.F.R. §§ 21.1031, 21.1032; see also 38 C.F.R. § 21.7030 (specifically applying the provisions of subpart B and 38 C.F.R. § 21.1031 to claims for educational assistance under Chapter 30) and 38 C.F.R. § 21.5030 (specifically applying the provisions of 38 C.F.R. § 21.1031 to claims for educational assistance under Chapter 32). 

Further, the VA General Counsel has held that VA's notice and duty to assist provisions are inapplicable where, as here, undisputed facts render a claimant ineligible for the benefit claimed and further factual development could not lead to an award.  See VAOPGCPREC 5-2004 (June 23, 2004).  As the application of the law to the undisputed facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is necessary.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Manning v. Principi, 16 Vet. App. 534, 542 (2002); see also Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

Similarly, the Veteran testified before the undersigned in September 2012.  He had an opportunity to identify his contentions and any available evidence capable of substantiating his claim.  He voiced a theory of incapacitation and/or eligibility for medical discharge which he asserted established his right to educational benefits.  Given the complexity of the educational laws and arguments advanced by the Veteran, the undersigned informed the Veteran that a review of the educational benefit regulations, rather than further testimony, was necessary.  Thus, given the facts of this case, the Board finds that the requirements of 38 C.F.R. § 3.103(c)(2) regarding the conduct of hearings were met.  See Bryant v. Shinseki, 23 Vet. App. 488 (2010). 

II. Educational Assistance

A review of the record reveals that the Veteran contends he is entitled to MGIB benefits under Chapter 30, Title 38, of the United States Code, the provisions of the VEAP under Chapter 32, Title 38, United States Code, Montgomery GI Bill - Selected Reserves (MGIB-SR), Reserve Educational Assistance Program (REAP), and National Call to Service (NCS).  The record reflects that the Veteran served on active duty from July 1977 to July 1980, and October 1987 to July 1991.  The Veteran denied making any contributions to either the VEAP or MGIB programs.

In order to be entitled to Chapter 30 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 June 30, 1985, and in the case of an individual whose obligated period of active duty is three years or more, serve at least three continuous years of active duty.  See 38 U.S.C.A. § 3011(a) (1) (A) (i); 38 C.F.R. § 21.7042(a) (1)-(2).  Additionally, an individual may establish eligibility for basic educational assistance based on a combination of service on active duty and service in the Selected Reserve if an individual first becomes a member of the Armed Forces or first entered active duty as a member of the Armed Forces after June 30, 1985, and completed the requirements of a high school diploma and successfully completed 12 semester hours in a program of education leading to a standard college degree.  38 C.F.R. § 21.7042(b)(1)-(2). 

Thus, in general, eligibility for benefits under the Montgomery GI Bill hinges upon a claimant first entering military service after June 30, 1985.  See 38 C.F.R. § 20.7042(a)(1).  The Veteran in this case began active service in July 1977.  Therefore, the Veteran is not eligible for Chapter 30 education benefits under these general criteria. 

The Board will also consider eligibility for educational assistance under the Post-Vietnam Era Veterans' Educational Assistance Act Program (VEAP). 

With respect to the VEAP, 38 U.S.C.A. § 3221 provides that each person entering military service on or after January 1, 1977, and before July 1, 1985, shall have the right to enroll in the education benefits program provided by this chapter at any time during such person's service on active duty before July 1, 1985.  When a person elects to enroll in the program, the person must participate for 12 consecutive months before disenrolling or suspending participation.  The requirement of 12 consecutive months of participation shall not apply when the participant suspends participation or disenrolls because of personal hardship or is released from military duty. 

The Veteran in this case entered active duty in July 1977, within the timeframe to participate in VEAP.  He did not, however, enroll in this program before July 1, 1985, and participate for 12 consecutive months as required. 

Upon careful review of the evidence of record, the Board finds that the Veteran is not entitled to educational assistance benefits either under VEAP.  The record does not show that the Veteran contributed to the VEAP program during his eligibility period, nor has he contended otherwise.  At the September 2012 hearing, the Veteran reported that when he entered service in 1977, he was aware of the educational program called VEAP.  Additionally, he recalled being offered an opportunity to contribute to the Program.  He reported that he did not contribute money towards the program.  He felt he was entitled to the benefits because he had an injury that interfered with his judgment and that was not diagnosed at that time.  He went through a period of active duty suffering from anxiety and a lot of uncertainty.  The record contains the Veteran's DD-214s that noted that he did not contribute to the Post-Vietnam Era Veteran's Educational Assistance Program.  The Board finds no exceptions within VEAP which, assuming the Veteran's allegations as true, would allow for VEAP benefits.

The Board also notes that with regard to MGIB-SR educational assistance benefits under Chapter 1606 of Title 10 of the United States Code, this program is an educational assistance program for members of the Selected Reserve of the Army, Navy, Air Force, Marine Corps, and Coast Guard, as well as the Army and Air National Guard.  Educational benefits are available to a member of the Selected Reserve under Chapter 1606 when he or she enlists, reenlists, or extends an enlistment as a reservist so that the total period of obligated service is at least 6 years from the date of such enlistment, reenlistment, or extension.  38 C.F.R. § 21.7540. 

The Reserve components decide who is eligible for the program and VA makes the payments for the program.  VA regulations provide that a determination of an individual's eligibility for MGIB-SR benefits is to be made by the Armed Forces.  38 C.F.R. § 21.7540(a). 

Additionally, with regard to REAP educational assistance benefits under Chapter 1607 of Title 10 of the United States Code, this program provides educational assistance for members of the reserve components called or ordered to active service in response to a war or national emergency declared by the President or the Congress, in recognition of the sacrifices that those members make in answering the call to duty.  10 U.S.C.A. § 16161.  Eligibility for REAP educational benefits is determined by the DoD and VA pays the benefits from funds contributed by DoD to each member entitled to educational assistance.  10 U.S.C.A. §§ 16162 [under certain circumstances eligibility for benefits of Veterans of the United State Coast Guard is determined by the Department of Homeland Security rather than by the DoD].  VA has no authority to determine eligibility for REAP educational benefits.  Cf.  38 C.F.R. § 21. 7540(a).  Furthermore, the RO searched the Chapter 1607 VA-REAP Eligibility Data and a record for the Veteran did not exist.  

Lastly, with regard to National Call to Service (NCS) under Section 510, Title 10, United States Code, this benefit is for service persons that entered on active duty after October 1, 2003 under the National Call to service, and either contributed funds or had the service branch make contributions for the Veteran.  According to the Veteran's DD-214, he first entered active duty in July 1977.  Therefore, the Veteran is not eligible for NCS education benefits under these general criteria.

Although it is sympathetic to the Veteran's claims, the Board is simply without authority to grant the claims on an equitable basis and instead is constrained to follow the specific provisions of law.  See 38 U.S.C.A. § 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). 

In cases such as this, where the law and not the evidence is dispositive in a case, entitlement to the VA benefits sought must be denied due to the absence of legal merit.  See Sabonis v. Brown, 6 Vet. App. 426, (1994).  Here, the pertinent facts are not in dispute.  Under the law, the Veteran is not entitled to MGIB, VEAP, or NCS educational assistance benefits. 


ORDER

The claim for basic eligibility for educational assistance benefits, to include the MGIB, VEAP and the NCS, is denied. 




____________________________________________
T. MAINELLI
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs