Citation Nr: 1410172	
Decision Date: 03/12/14    Archive Date: 03/20/14

DOCKET NO.  10-31 941A	)	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 Chapter 33, Title 38, United States Code (Post-9/11 GI Bill).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

N. Rippel, Counsel



INTRODUCTION

The Veteran had active service from July 1986 to July 1987 and from February 1992 to November 2011.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2009 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which notified the Veteran that he was eligible for 31 months and 20 days of full-time benefits under the Post-9/11 GI Bill program.

On his August 2010 substantive appeal, VA Form-9, the appellant marked that he desired to testify before a member of the Board at a Travel Board hearing at the RO.  The appellant was scheduled for such a hearing in September 2011, but he failed to report.  The hearing request is deemed withdrawn because he failed to report for this hearing, and no request for postponement has been received.  See 38 C.F.R. §§ 20.703, 20.704 (2013).


FINDINGS OF FACT

1.  The Veteran previously used 16 months and 10 days of entitlement under the Chapter 1606 Montgomery GI Bill - Selected Reserve educational assistance program from his entitlement in 2009.

2.  Under VA law, the Veteran is entitled to a maximum of 48 months of educational benefits under two or more VA education programs; there is no provision in the law that would afford him more than a combined total of 48 months of educational benefits.




CONCLUSION OF LAW

The Veteran has no legal entitlement to more than 31 months and 20 days of additional VA educational assistance benefits 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.  The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA provides, among other things, that the VA will make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim for benefits under laws administered by the VA.  The VCAA also requires the VA to assist a claimant in obtaining that evidence.  38 U.S.C.A. §§ 5103, 5103A. 

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, upon further review, it is not clear that such notice is required in this case because the benefits sought are found in Chapter 33 of Title 38.  See Simms v. Nicholson, 19 Vet. App. 453, 456 (2007) (holding that the VCAA applied only to the award of benefits under Chapter 51 of 38 U.S.C.A.); 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").  VA educational programs have their own provisions that address notification and assistance.  For example, under 38 C.F.R. § 21.1031(b) "if a formal claim for educational assistance is incomplete, or if VA requires additional information or evidence to adjudicate the claim, VA will notify the claimant of the evidence and/or information necessary to complete or adjudicate the claim and the time limit provisions of § 21.1032(d)." 

Furthermore, as will be explained below, it is the law, and not the evidence, that is dispositive in this case.  When there is an error in the VCAA notice, or in this case the absence of the VCAA notice, there is no prejudice to a claimant as a result of the error if the benefit sought could not possibly have been awarded as a matter of law.  See Mayfield v. Nicholson, 19 Vet. App. 103, 116 (2005) ("This Court has held that an error is nonprejudicial where the benefit sought could not possibly have been awarded as a matter of law."); see also Manning v. Principi, 16 Vet. App. 534 (2002); Smith v. Gober, 14 Vet. App. 227 (2002); DelaCruz v. Principi, 15 Vet. App. 143 (2002) (VCAA not applicable where law, not the factual evidence, is dispositive).  An opinion from the VA General Counsel has held that the 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 on the basis that it is the law, not the evidence, that is dispositive in this case.

II.  Merits of Claim

The essential facts of this case are not in dispute.  VA records show that the Veteran received payment of Montgomery GI Bill - Selected Reserve Chapter 1606 benefits at the full-time rate for school enrollments prior to August 1990.  These payments represent 16 months and 10 days of entitlement that the Veteran was entitled to under this program.  See 38 C.F.R. § 21.7570 (2013).  In statements submitted in June 2009 and August 2010, the Veteran has acknowledged that he received and used the 16 months and 10 days of benefits.  However, he urges that he paid back 9 months of entitlement to Chapter 1606 benefits to VA when he was honorably discharged as an enlisted man in order to be able to attend Air Force ROTC in college.  He submitted a letter from a VA official dated in 1992 showing that a payment of $60 was applied to his Selected Reserve Education Assistance Program overpayment, and that his debt balance was now $0.  The Veteran seeks to have an additional 4 months and 10 days of chapter 33 educational benefits so that he can have the full 36 months of Chapter 33 benefits.  

In June 2009, the Veteran applied for Post-9/11 GI Bill Chapter 33 educational assistance benefits.  The Veteran's basic eligibility for Chapter 33 educational assistance benefits is not at issue, as VA has found him eligible to receive full-time benefits for a period of 33 months and 20 days.  This case essentially concerns the determination of the amount of benefits an individual may be entitled to under Chapter 33 (Post-9/11 GI Bill) after using their entitlement under another educational 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 38 U.S.C. Chapter 33, subject to the provisions of § 21.4020 and this section.  38 C.F.R. § 21.9550(a).  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.  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 Chapter 1606 and 33.  38 C.F.R. §§ 21.4020, 21.9550(b)(1).  

Thus, as applied to the facts of this case, when the Veteran elected to receive 16 months and 10 days of educational assistance under Chapter 1606, his entitlement to additional educational assistance was limited by that portion of time.  Therefore, by law, he was limited to receive 33 months and 20 days of entitlement under Chapter 33, for an aggregate total of 48 months of entitlement.  38 C.F.R. §§ 21.4020(a), 21.9550(a). 

The Veteran has asserted that the benefits he received under Chapter 1606 should be discounted because he paid back some of the benefits to VA.  Specifically, he asserted that he paid back $1,260.00, which represented $140.00 over 9 months, of unearned Chapter 16 MGIB-SR entitlement.  He notes these were paid back because he left enlisted service and joined ROTC which resulted in his becoming an Air Force officer.  He has urged that his Post-9/11 GI Bill award should be augmented to add an additional 4 months 10 days to fairly compensate him for the monies he paid back.  

The Board finds no basis in governing VA laws and regulation to grant this benefit.  First, the Board notes that the Veteran has not argued nor does the record suggest that he meets any of the criteria for making charges against entitlement to his MGIB-SR entitlement as set forth at 38 C.F.R. § 21.7576.  Additionally, while he argues that he paid back the MGIB-SR benefits, he in fact appears to have paid for them, albeit after he used them.  Specifically, he appears to have paid an overpayment because he had already used the 16 months and 10 days of benefits without actually having paid the commensurate amount necessary to use such benefits.  

The Board appreciates the Veteran's arguments.  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); Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  Neither the RO nor the Board is free to 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 16 months and 10 days of full-time entitlement to educational assistance under Chapter 1606, the Veteran has no legal entitlement to any additional VA educational assistance under 38 U.S.C. Chapter 33, beyond 31 months and 20 days of full-time entitlement.  Although an individual may be entitled to benefits under various education programs, as in this case, there is a limit, however, as to the total aggregate period for which any person may receive educational assistance under two or more educational programs.  The statutes and regulations limit such educational assistance to no more than 48 months.  38 U.S.C.A. § 3695 (West 2002); 38 C.F.R. § 21.4020 (2013).  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).  As the law is dispositive of the instant case, the benefit of the doubt rule is not for application.



ORDER

Entitlement to additional Department of Veterans Affairs (VA) educational assistance benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) is denied.



____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs