Citation Nr: 1414331 Decision Date: 04/02/14 Archive Date: 04/11/14 DOCKET NO. 12-06 252 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether the Veteran made an irrevocable election for educational assistance under the Post-9/11 GI BILL program (Chapter 33) in lieu of benefits under the Montgomery GI BILL program (Chapter 30). ATTORNEY FOR THE BOARD William Yates, Counsel INTRODUCTION The Veteran served on active duty from April 2000 to September 2004. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. FINDINGS OF FACT 1. In November 2011, the Veteran filed an application for educational assistance under the Post-9/11 GI BILL by electronically filing a VA Form 22-1990, which included an irrevocable election for educational assistance under the Post-9/11 GI BILL in lieu of benefits under the Montgomery GI BILL. 2. In December 2011, the RO issued a Certificate of Eligibility letter to the Veteran notifying him that he was eligible to receive benefits under the Post-9/11 GI BILL and had one month and 25 days of full-time benefits remaining. CONCLUSION OF LAW The Veteran's election for educational benefits under the Post-9/11 GI Bill in lieu of benefits under the Montgomery GI Bill is irrevocable. 38 U.S.C.A. §§ 3301-24 (West 2002); 38 C.F.R. § 21.9520, 21.9550 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The applicable notification and assistance procedures for educational assistance claims emphasize that VA has no further duty to notify or assist the claimant when the undisputed facts render the claimant ineligible for the claimed benefit under the law, as is the case here. 38 C.F.R. §§ 21.1031(b), 21.1032(d) (2013). Therefore, the Board finds that no further action is necessary under the statutory and regulatory duties to notify and assist. B. Law and Analysis In November 2011, the Veteran applied for educational benefits under the Post-9/11 GI Bill by electronically filing a VA Form 22-1990, which included an irrevocable election for educational assistance under the Post-9/11 GI BILL in lieu of benefits under the Montgomery GI BILL. On the application form, the Veteran requested these benefits effective December 1, 2011. 38 U.S.C.A. §§ 3301-24; 38 C.F.R. § 21.9520. On November 17, 2011, the RO sent a notice letter to the Veteran indicating that he had "01 months and 25 days of entitlement left under MGIB (ch30). The letter then indicated: If we process your application for the Post 9/11 GI Bill now you would only receive the remainder of your ch30 entitlement of 01 months and 25 days under the Post 9/11 GI Bill. If you exhaust all of your entitlement under ch30, and then apply for the Post 9/11 GI Bill, you may receive up to an additional 12 months under the Post 9/11 GI Bill. The letter then provided the Veteran with an opportunity to rescind his application. On December 2, 2011, an amended copy of the November 17, 2011 letter was received by fax at the RO. The amended copy of the letter indicated that the Veteran wished to relinquish his eligibility under the Montgomery GI Bill effective November 30, 2011. On December 6, 2011, the RO processed the Veteran's application and issued a Certificate of Eligibility under the Post-9/11 GI Bill program. This Certificate of Eligibility indicated the Veteran had one month and 25 days of full-time benefits remaining. On December 12, 2011, the Veteran submitted a statement seeking to rescind his election for educational assistance under the Post-9/11 GI BILL in lieu of benefits under the Montgomery GI BILL. In support of this request, he indicated that he misunderstood the effects of his election to relinquish the Montgomery GI Bill benefits. In a subsequent report of contact, dated December 23, 2011, as well as in written statements later received, the Veteran alleged that he did not fill out the RO's November 17, 2011 letter, and that his spouse had done so without his knowledge. In February 2012, the Veteran's spouse submitted a letter indicating that she responded to the RO's November 17, 2011 letter, without the Veteran's knowledge, indicating that she thought she was doing him a favor. In accordance with 38 C.F.R. § 21.9520(c)(1)(i), an individual is eligible for Chapter 33 benefits if he has met the minimum service requirements, and then makes an irrevocable election to receive benefits under 38 U.S.C. Chapter 33 by relinquishing eligibility under either 38 U.S.C. Chapter 30, or 10 U.S.C. Chapter 106a, 1606, or 1607. Pursuant to 38 C.F.R. § 21.9520(c)(2), an individual may make an irrevocable election to receive benefits under this chapter by properly completing a VA Form 22-1990, submitting a transfer-of-entitlement designation under this chapter to the Department of Defense, or submitting a written statement that includes the following: (i) identification information (including the name, social security number and address); (ii) if applicable, an election to receive benefits under chapter 33 in lieu of benefits under one of the applicable chapters listed in paragraph (c)(1)(i) of this section (e.g., 'I elect to receive benefits under the Post-9/11-GI Bill in lieu of benefits under the Montgomery GI Bill - Active Duty (chapter 30) program.'); (iii) the date the individual wants the election to be effective (e.g., 'I want this election to take effect on August 1, 2009.'). An election request for an effective date prior to August 1, 2009, will automatically be effective August 1, 2009; and (iv) an acknowledgement that the election is irrevocable (e.g., 'I understand that my election is irrevocable and may not be changed.'). The criteria listed under 38 C.F.R. §21.9520(c)(2) are disjunctive rather than conjunctive which means only one of the requirements under this provision must be met for irrevocability to occur. See Drosky v. Brown, 10 Vet. App. 251, 255 (1997)(noting that the Board erred in reading a requirement as conjunctive rather than disjunctive as contemplated by the word "or" between two symptoms in the rating criteria at issue.); Johnson v. Brown, 7 Vet. App. 95, 97 (1994). Based on the above-referenced regulatory provisions, an election to receive benefits under Chapter 33 becomes irrevocable upon completion and submission of a VA Form 22-1990. Thus, the Board finds that the irrevocability requirements set forth under 38 C.F.R. § 21.9520(c)(2) have been met and that the Veteran did make an irrevocable election for educational benefits under the Post-9/11 GI Bill program when he submitted the completed application (VA Form 22-1990) in November 2011. As such, his election for Post-9/11 GI Bill benefits is irrevocable and cannot be rescinded. As for the Veteran's contentions concerning the response to the RO's November 17, 2011 letter, the irrevocable election had already been made by him when he filed his VA Form 22-1990. As noted on VA Form 22-1990, "My election is irrevocable and may not be changed." Although the Veteran may have misunderstood the benefits available to him, the Board is bound by the applicable law and regulations when determining a claim for VA benefits. Regardless of the equities of the Veteran's situation, VA can only pay benefits that are authorized by law. See McTighe v. Brown, 7 Vet. App. 29, 30 (1994) ("[P]ayment of government benefits must be authorized by statute; therefore, erroneous advice given by a government employee cannot be used to estop the government from denying benefits."). The Board has no discretion to afford benefits where basic eligibility is not established under the law. ORDER As the Veteran's election for educational benefits under the Post-9/11 GI Bill in lieu of benefits under the Montgomery GI Bill is irrevocable, the appeal is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs