Citation Nr: 1422294 Decision Date: 05/16/14 Archive Date: 05/29/14 DOCKET NO. 10-44 309A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to education program "kicker" payments under the provisions of Chapter 33, Title 38, United States Code (Post 9/11 GI Bill or Chapter 33). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1982 to July 1986 and from March 1987 to August 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 decision by the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA). Jurisdiction over the appeal was subsequently transferred to the RO in Winston-Salem, North Carolina. The Board remanded the case to schedule a hearing in July 2012. Although the issue was previously identified as entitlement to Veterans' Educational Assistance Program (VEAP) kicker payments, for reasons that will be addressed below the Board finds the issue for appellate review is more appropriately addressed as provided on the title page of this decision. In May 2013, the Veteran testified at a videoconference hearing before the undersigned Acting Veterans Law Judge. A copy of the transcript of that hearing is of record. The Board notes that in June 2012 the Veteran was notified that the record did not indicate he had appointed representation and that unless he executed another appointment he would be considered to be representing himself. A review of Virtual VA electronic records shows that he had properly appointed the Disabled American Veterans to represent him in October 2004 and that there is no indication that representation has been revoked. The Board finds, however, that in light of the fact that the Veteran indicated he would be representing himself at his May 2013 hearing and the favorable determination in this decision, no further action as to this matter is required at this time. FINDING OF FACT The Veteran is shown to have had a $12,000 education assistance program kicker transferred in June 1997 and that by reason of his irrevocable election for Post 9/11 GI Bill educational assistance in July 2010 he remains entitled to that increase. CONCLUSION OF LAW The criteria for education program "kicker" payments under the Post 9/11 GI Bill are met. 38 U.S.C.A. §§ 3015, 3018C, 3222 (West 2002 & Supp. 2013); 38 C.F.R. § 21.9650 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA regulations specific to education benefits identify the notice and assistance requirements. See 38 C.F.R. §§ 21.1031, 21.1032, 21.9510 (2013). Although no notice was provided in the case, as the matter at issue does not involve an entitlement claim, the Board finds no additional development is required. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (holding that the statutory and regulatory provisions pertaining to VA's duty to notify and assist do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence). All relevant evidence necessary for an equitable disposition of this appeal has been obtained. VA regulations provide, generally, that an individual may establish eligibility for Chapter 33 educational assistance based on active duty service after September 10, 2001, if he or she serves a minimum of 90 aggregate days and is separated from active service with an honorable discharge. Then, after meeting the minimum service requirements the individual 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 (MGIB or Chapter 30), or 10 U.S.C. chapter 106a, 1606, or 1607. An individual may make an irrevocable election to receive benefits under this chapter by properly completing VA Form 22-1990. 38 C.F.R. § 21.9520 (2013). Regulations also provided an opportunity for certain Post-Vietnam era Veterans' Education Assistance (VEAP or Chapter 32) participants, as of October 9, 1996, to enroll in the Chapter 30 program. The enrollment required that during the one-year period beginning on October 9, 1996, the VEAP participant make an irrevocable election to receive Chapter 30 benefits in lieu of benefits under Chapter 32. Upon such disenrollment from the Chapter 32 program, any VEAP contribution made pursuant to 38 U.S.C.A. § 3222(c) "shall remain in such account to make payments of benefits to such individual under section 3015(f) of this title." 38 U.S.C.A. § 3018C(a), (c) (West 2002). Under 38 U.S.C.A. § 3222(c) the Secretary of Defense is authorized to contribute to the fund of any participant such contributions as the Secretary of Defense deems necessary or appropriate to encourage persons to enter or remain in the Armed Forces, including contributions in lieu of, or to reduce the amount of, monthly deductions under subsection (a) of that section. 38 U.S.C.A. § 3222(c) (West 2002). In the case of an individual for whom the Secretary of Defense made contributions under section 3222(c) of this title and who is entitled to educational assistance under section 3018A, 3018B, or 3018C of this chapter, the Secretary shall increase the rate of the basic educational assistance allowance applicable to such individual in excess of the rate provided under subsection (a) of this section in a manner consistent with, as determined by the Secretary of Defense, the agreement entered into with such individual pursuant to the rules and regulations issued by the Secretary of Defense under section 3222(c) of this title. 38 U.S.C.A. § 3015(f) (West 2002). For supplemental educational assistance (provided based upon critical skills or specialty or additional service), in general, an individual who made an election to receive educational assistance under Chapter 33 and who, at the time of the election, was entitled to increased educational assistance under 38 U.S.C.A. § 3015(d) or section 16131(i) of title 10 shall remain entitled to increased educational assistance in the utilization of the individual's entitlement to educational assistance under this chapter. 38 U.S.C.A. § 3316 (West 2002 & Supp. 2013). If an individual is "eligible" for educational assistance under Chapter 33 by reason of an irrevocable election "to relinquish eligibility" under Chapter 30 and, on the date of such election, the individual is also entitled to an increase ("kicker") of the amount of educational assistance under 38 U.S.C. 3015(d), the individual remains entitled to that increase under Chapter 33. 38 C.F.R. § 21.9650(b)(1) (2013) (emphasis added). If an individual is "eligible" for educational assistance under Chapter 33 by reason of an irrevocable election "to relinquish eligibility" under 10 U.S.C. chapter 1606 in accordance with the provisions of § 21.9520(c) and, on the date of such election, the individual is also entitled to an increase ("kicker") of the amount of educational assistance under 10 U.S.C. 16131(i), the individual remains entitled to that increase ("kicker") under 38 U.S.C. chapter 33. 38 C.F.R. § 21.9650(c)(1) (emphasis added). A claimant may appeal a decision of eligibility or entitlement to educational assistance under title 38, U.S.C., to the Board of Veterans Appeals in accordance with the provisions of 38 CFR Part 20. A claimant may appeal a decision of entitlement to educational assistance under 10 U.S.C. 510 and 10 U.S.C. chapters 106a, 1606, and 1607 to the Board of Veterans Appeals in accordance with the provisions of 38 CFR Part 20. A claimant may not appeal a decision of eligibility under 10 U.S.C. 510 or 10 U.S.C. chapters 106a, 1606, or 1607 or for supplemental or increased educational assistance under 10 U.S.C. 16131(i) or 38 U.S.C. 3015(d), 3021, or 3316 to VA as the Department of Defense solely determines eligibility to supplemental and increased educational assistance under those sections. 38 C.F.R. § 21.1034 (2013); see also 74 Fed. Reg. 14654-01 (Mar. 31, 2009). A review of the pertinent evidence in this case reveals that in June 1982 the Veteran enlisted in the United States Army Reserve with an enlistment agreement for a $12,000 VEAP contribution. A June 1997 agreement shows the Veteran elected to enroll in the MGIB/Chapter 30 education benefits program and noted that he understood any earned "kicker" would be payable under the MGIB. The witnessing service department official noted the Veteran had a $12,000 kicker. Records show that in a May 2009 VA electronic communication exchange, the Veteran was notified that his "enlistment incentive" would transfer to the Post 9/11 GI Bill. In a July 2010 VA Form 22-1990 the Veteran requested election for Post 9/11 GI Bill or Chapter 33 education benefits. He specifically expressed that he elected to receive Chapter 33 education benefits in lieu of Chapter 30 - MGIB benefits. In VA correspondence dated in August 2010 the Veteran was provided a certificate of eligibility for Post 9/11 GI Bill education benefits. VA records also show the Veteran was informed that he was not entitled to payment of the VEAP kicker amount under Chapter 33 educational assistance. In a September 2010 statement of the case it was noted that records showed his kicker was awarded under the VEAP program and that such kickers were not payable under Chapter 33. The regulatory authority cited was 38 C.F.R. § 21.9650. A May 2011 supplemental statement of the case noted the Veteran's VEAP kicker had been transferred to be paid under Chapter 30, but that it was not initially a Chapter 30 kicker. Based upon the evidence of record, the Board finds the Veteran is shown to have had a $12,000 Chapter 32 kicker that transferred to the Chapter 30 program in June 1997 with disenrollment for all benefits under Chapter 32 and that by reason of his irrevocable election to relinquish eligibility under Chapter 30 for Post 9/11 GI Bill educational assistance in July 2010 he remains entitled to that kicker increase. The Veteran clearly made an irrevocable election to receive Chapter 30 benefits in June 1997 and noted that he understood any earned "kicker" would be payable under the MGIB. Under the provisions of 38 U.S.C.A. § 3018C(c) he was "disenrolled" from any and all Chapter 32 education assistance programs at that time. The Board further finds that his June 1982 enlistment agreement with an "ULTRA VEAP" was apparently provided under 38 U.S.C.A. § 3222 and that by agreement in June 1997 under the provisions of 38 U.S.C.A. § 3018C(c) his $12,000 kicker was to be paid out under Chapter 30. In essence, his Chapter 32 kicker became a Chapter 30 kicker in June 1997 and then became a Chapter 33 kicker in July 2010. He had no Chapter 32 eligibility to relinquish in July 2010 and the fact that his "initial" kicker agreement arose under the VEAP or Chapter 32 educational assistance program does not preclude payment under Chapter 33. It is also significant to note that his July 2010 VA Form 22-1990 election for Chapter 33 benefits was only provided in lieu of his Chapter 30 benefits, and were any VEAP or Chapter 32 kicker benefits remaining at that time his eligibility to such benefits would not have been relinquished by his Chapter 33 election. The Board finds this decision is fully favorable to the Veteran and the appeal is granted. ORDER Entitlement to education program "kicker" payments under the provisions of the Post 9/11 GI Bill is granted. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs