Citation Nr: 1414033	
Decision Date: 04/01/14    Archive Date: 04/11/14

DOCKET NO.  11-21 210	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Whether the Veteran made an irrevocable election for education benefits under the Post 9/11 GI Bill program (Chapter 33) in lieu of benefits under the Montgomery GI Bill (MGIB) program (Chapter 30).


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Larson, Associate Counsel


INTRODUCTION

The Veteran had active military service from September 1999 to May 2003.  

He appealed to the Board of Veterans' Appeals (Board/BVA) in response to a March 2011 award of education benefits under the Post-9/11-GI Bill program by the Department of Veterans Affairs (VA) Regional Office (RO) education processing center in St. Louis, Missouri.

In April 2012, in support of his claim, he had a videoconference hearing before the undersigned Veterans Law Judge of the Board.


FINDING OF FACT

The record, including the three separately filed VA Form 22-1990 applications, do not contain an acknowledgement that the Veteran's election for education benefits under the Post-9/11-GI Bill program in lieu of benefits under the MGIB program was irrevocable, and, hence, his claim was not "properly completed." 


CONCLUSION OF LAW

The criteria for an irrevocable election for education benefits under the Post-9/11 GI Bill program in lieu of benefits under the MGIB program have not been met; however, reversion from Post-9/11-GI Bill program (Chapter 33) to the MGIB program (Chapter 30) is warranted.  38 U.S.C.A. §§ 3322 (West Supp. 2013); 38 C.F.R. §§ 21.9520, 21.9550 (2013).



REASONS AND BASES FOR FINDING AND CONCLUSION

In view of the ultimately favorable outcome of this appeal, the usual question need not be addressed of whether there was compliance with the duty to notify and assist obligations of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013)).

Moreover, and in any event, the provisions of the VCAA do not apply to claims for educational benefits where the applicable chapter of Title 38, United States Code contains its own notice provisions.  See, e.g., Barger v. Principi, 16 Vet. App. 132, 138 (2002).  The regulations delineating the specific notification and assistance requirements for education claims are set forth in 38 C.F.R. §§ 21.1031 (duty to notify) and 21.1032 (duty to assist).  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."  This was done in this particular instance.

Turning now to the substantive merits of this appeal, the Veteran alleges that an advisor at his university erroneously told him that he had used up his Chapter 30 benefits and, thus, could not use any more to cover the cost of his remaining courses.  He then, as a consequence, filled out three separate online applications for Chapter 33 benefits in lieu of Chapter 30, presumably correcting errors with each subsequent submission.  The last of these applications was submitted in February 2011 and listed an effective date of April 26, 2010.  He was sent a "Certificate of Eligibility" for Chapter 33 benefits in March 2011.  The letter informed him that he had 18 months and 15 days remaining for use based on his earlier Chapter 30 benefit use.  


The June 2011 Statement of the Case (SOC) indicates that, shortly after the Veteran was granted his Certificate of Eligibility, the St. Louis RO stopped Chapter 30 benefits effective April 26, 2010.  This resulted in a debt owed by the Veteran of $15,723.00.  

The Veteran alleges that a Veterans' Service Officer (VSO) associated with his university contacted him prior to his Chapter 33 benefits being approved and informed him that an error had been made.  The officer indicated that he would not certify "the fees for Chapter 33 payment to [the VA] with the expectation that Chapter 30 benefits [would] continue to be used."  

The claims folder does contain a Report of Contact between VA and a VSO stating the Veteran did not in fact want Chapter 33 benefits and that his Application should not be processed.  This report is undated, but it does tend to support the Veteran's assertion that these events transpired.  

The Veteran submitted a timely Notice of Disagreement (NOD) with his Certificate of Eligibility in April 2011.  The RO denied his request in the June 2011 SOC, finding that he had irrevocably elected to receive benefits under the Post-9/11 GI Bill in lieu of the MGIB.  See 38 C.F.R. § 21.9520(c)(1) (an otherwise qualifying individual may establish eligibility for educational assistance under Chapter 33, if he or she makes an irrevocable election to receive benefits under that Chapter by relinquishing eligibility under Chapter 30).

The Veteran contends that his decision should not be irreversible, given that he was misinformed about the nature of his remaining Chapter 30 benefits and unaware of the negative consequences of his choice until after he returned.  Additionally, he states that he tried, via the VSO, to withdraw the election before it was actually processed.  

The Board finds the Veteran's statements and testimony to be credible and supported by the record.  Significantly, the Report of Contact with the VSO in the file prior to the award of Chapter 33 benefits tends to support the contention that the Veteran did not want to follow through on the election.  

The Post-9/11 GI Bill had been in operation for a little over a year by the time the Veteran initially applied and had subsequent revisions.  As do many Veterans in navigating the complex educational benefits programs, the Veteran relied on what turned out to have been erroneous information from an advisor at the school.  As it turned out to be a mistake, the Veteran sought to remedy immediately following contact with the VSO affiliated with the school.

The relevant statutory authority in this case is set forth in 38 U.S.C.A. § 3322, entitled "Bar to duplication of educational assistance benefits," and reads:  An individual entitled to educational assistance under this chapter who is also eligible for educational assistance under chapter 30, . . . , may not receive assistance under two or more such programs concurrently, but shall elect (in such form and manner as the Secretary may prescribe) under which chapter or provisions to receive educational assistance.  38 U.S.C.A. § 3322(a).

Notably, the purpose of requiring election was to avoid duplication of educational assistance, and the statute itself does not require that the election be irrevocable.  This was added by the regulation, which provides that an otherwise qualifying individual with MGIB entitlement may establish eligibility for educational assistance under the Post-9/11 GI Bill based on active duty service after September 10 2001, if he or she makes an irrevocable election to receive benefits under the Post-9/11 GI Bill by relinquishing eligibility under the MGIB.  38 C.F.R. § 21.9520(c)(1).

The issue before the Board, then, is whether the Veteran made an irrevocable election of Post-9/11 GI Bill benefits.  An individual may make an irrevocable election to receive benefits under Chapter 33 by one of three ways, the first of which is by properly completing VA Form 22-1990.  38 C.F.R. § 21.9520(c)(2).  Here, the claim was on an electronic version of VA Form 22-1990, and it must be determined whether such form was "properly completed."

The form as completed did not contain any form of signature or acknowledgement from the Veteran, including an e-signature.  The date was left blank.  

In contrast to the electronic version, the official version of the VA Form 22-1990, as available in a paper copy, and on the VA web site for forms, contains a section in which a Veteran must explicitly acknowledge that his "election is irrevocable and may not be changed."  See VA Form 21-1990, page 1 (Oct. 2010) (emphasis in original).  He must enter the date, and indicate via a checkmark that he understands that, by electing Chapter 33 benefits, it is in lieu of entitlement to Chapter 30 benefits and, again, that his election is irrevocable.

Although the RO responds that the instructions for the electronic version of the VA Form 22-1990 state at the beginning that the election is irrevocable, the body of the form itself does not require any acknowledgement by a Veteran that he/she understands that the election is irrevocable, such as is contained in the official version.

The other two methods for effecting an irrevocable election to receive benefits under Chapter 33 are by submitting a transfer-of-entitlement designation under this chapter to the Department of Defense (DoD), or submitting a written statement that includes the following:

(i) Identification information (including name, social security number, and address); 
(ii) If applicable, an election to receive benefits under chapter 33 in lieu of benefits under, e.g., the MGIB; 
(iii) The date the individual wants the election to be effective; and 
(iv) An acknowledgement that the election is irrevocable (e.g., "I understand that my election is irrevocable and may not be changed.").  38 C.F.R. § 21.9520(c)(2).

There is no evidence or suggestion that the Veteran submitted a transfer-of-entitlement designation to the DoD.  As to the final method, a written statement, this, too, requires that he explicitly acknowledge that the election is irrevocable.  As can be seen, this is a separate requirement, in addition to the requirement that he elect to receive benefits in lieu of MGIB benefits.  He made no such written statement.

Given the explicit acknowledgement required in both the official application form and for a written statement to be accepted as an irrevocable election, the Board finds that in order for the application to be "properly completed," there must be sufficient information to convey that the Veteran has acknowledged that the election is irrevocable.  As documented in the file, the electronically filed version VA Form 22-1990 does not contain such acknowledgement.

Under these circumstances, the Board finds that the Veteran did not "properly complete" any of his electronically submitted VA Form 22-1990s, the last of which he submitted in February 2011; there was no transfer-of-entitlement designation to the DoD, and there was no written statement acknowledging his understanding that the election was irrevocable.  Hence, there was no irrevocable election of Chapter 33 Post-9/11 GI Bill benefits.  Particularly where the consequences of filing an irrevocable election are potentially so significant, strict compliance with the irrevocable election requirements is required.  In reaching this determination, the benefit-of-the-doubt rule has been applied.  38 U.S.C.A. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

In granting his claim, the Board also recognizes the Veteran's testimony during his April 2012 hearing that he sought to receive payment to cover the balance of the student loan he had to use to pay off the debt he owed VA based on the retroactive cancellation of Chapter 30 benefits effective April 26, 2010.  However, the Board does not have authority to grant this claim on an equitable basis and instead is constrained to follow the specific provisions of law.  38 U.S.C.A. § 7104 (West 2002 & 2012); Harvey v. Brown, 6 Vet. App. 416 (1994).  Payments from the Federal Treasury must be authorized by statute, so government employees may not make obligations that are beyond the scope authorized by statute.  Zimick v. West, 11 Vet. App. 45, 50 (1998) (citing Malone v. Gober, 10 Vet. App. 539, 543 (1997)) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 424, 110 S. Ct. 2465, 2471, 110 L. Ed. 2d 387 (1990); 31 U.S.C. 1341(a)).



ORDER

The Veteran did not make an irrevocable election for education benefits under the Post-9/11-GI Bill program in lieu of benefits under the MGIB program; the appeal is granted to this extent.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs