Citation Nr: 1432452	
Decision Date: 07/21/14    Archive Date: 07/29/14

DOCKET NO.  10-47 114A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUE

Entitlement to VA educational assistance benefits under 38 U.S.C.A. Chapter 33.


ATTORNEY FOR THE BOARD

M. M. Olson, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 2003 to November 2004.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York.  

In his substantive appeal, the Veteran requested a video conference hearing and one was scheduled for him in May 2014.  However, the Veteran did not appear for the Board hearing.  As the Veteran has not requested to reschedule the Board hearing, the request for a hearing is considered withdrawn, and the Board will proceed with adjudication of the Veteran's claim.  38 C.F.R. § 20.704(d) (2013).


FINDING OF FACT

Based on the Veteran's prior use of 44 months and 29 days of educational benefits under the Dependents' Educational Assistance Program (Chapter 35), and his use of 3 months and 1 day of educational benefits under the Montgomery GI Bill (Chapter 30), for a total of 48 months, the Veteran is not eligible for educational benefits under the provisions of 38 U.S.C.A. Chapter 33.


CONCLUSION OF LAW

The criteria for entitlement to VA educational assistance benefits under 38 U.S.C.A. Chapter 33 have not been met.  38 U.S.C.A. § 3695 (West 2002 & Supp. 2013); 38 C.F.R. §§ 21.4020(a), 21.9500-21.9770 (2013).  


REASONS AND BASES FOR FINDING AND CONCLUSION

The provisions of the law regarding VA's duties to notify and assist have no effect on an appeal where, as here, the law, and not the underlying facts or development of the facts, is dispositive.  38 U.S.C.A. § 5103A (West 2002); Manning v. Principi, 16 Vet. App. 534 (2002).  Additionally, VA's General Counsel held in a precedential opinion that there is no duty to notify a claimant where the claim cannot be substantiated because there is no legal basis for the claim, or because undisputed facts render the claimant ineligible for the claimed benefit, and no duty to assist a claimant where there is no reasonable possibility that such aid could substantiate the claim.  VAOPGCPREC 5-2004.  As the undisputed facts render the Veteran ineligible for the claimed benefit in this case, there is no reasonable possibility that further notice or assistance would aid in substantiating the claim.  Thus, any deficiencies of notice or assistance are rendered moot.

The provisions of Chapter 33, Title 38, of the United States Code were established by the Post-9/11 Veterans Educational Assistance Act of 2008.  See Pub. L. 110-252, Title V, §§ 5001-5003, 122 Stat. 2357 (2008).  The law has been referred to as the Post-9/11 GI Bill, the 21st Century G.I. Bill of Rights and the Webb G.I. Bill.  The original Post-9/11 GI Bill's provisions went into effect on August 1, 2009; changes to the law have been put into place since that time, but are not pertinent to the matter on appeal in this case.  

The Post-9/11 Veterans Educational Assistance Act of 2008 represented a new program of education benefits designed for veterans who served on active duty after September 11, 2001.  The provisions of the Act are currently codified at 38 U.S.C.A. §§ 3301-3324 (West 2002) with the implementing regulations found at 38 C.F.R. §§ 21.9500-21.9770 (2013).  

VA law provides a limit on training under two or more programs.  The aggregate period for which any person may receive assistance under two or more of the following laws may not exceed 48 months (or the part-time equivalent): (1) Part VII or VIII, Veterans Regulations numbered 1(a), as amended; (2) Title II of the Veterans' Readjustment Assistance Act of 1952; (3) The War Orphans' Educational Assistance Act of 1956; (4) 38 U.S.C. chapters 30, 32, 33, 34, 35, and 36; (5) 10 U.S.C. chapters 106a, 1606, and 1607; (6) Section 903 of the Department of Defense Authorization Act, 1981; (7) The Hostage Relief Act of 1980; and (8) The Omnibus Diplomatic Security and Antiterrorism Act of 1986.  38 U.S.C.A. § 3695(a); 38 C.F.R. § 21.4020(a). 

The Veteran asserts that he is entitled to the full 36 months of education benefits under Chapter 33 because of his own active duty service from January 2003 to November 2004.  He asserts that the maximum 48-month time limit provided for by 38 U.S.C.A. § 3695(a) does not apply to the new Chapter 33.  Alternatively, he contends that counting his receipt of benefits under Chapter 35, which he received for his father's active duty service, against the 48-month time limit punishes him for having a family tradition of military service and goes against the intent of the law.  In addition, the Veteran asserts that when he was given the opportunity to have his military pay reduced in order to receive Chapter 30 benefits, he was never told that he would not be eligible for Chapter 33 benefits because of the benefits he had previously received under Chapter 35.  

Here, the evidence demonstrates, and the Veteran does not argue otherwise, that the Veteran has used 44 months and 29 days of educational benefits under the Survivors' and Dependents' Educational Assistance Program (Chapter 35), and 3 months and 1 day of educational benefits under the Montgomery GI Bill (Chapter 30), for a total of 48 months.  As noted above, while an individual may be entitled to benefits under various education programs, a person may not receive more than 48 months of educational assistance under two or more educational programs.  38 U.S.C.A. § 3695; 38 C.F.R. § 21.4020(a).  A review of the provisions of 38 U.S.C.A. § 3695 does not reveal any exclusion pertaining to the current Chapter 33.  Thus, the Board finds the Veteran's combined VA education benefits are limited by VA regulation to 48 months.  

In addition, the Veteran has neither asserted nor established entitlement to VA vocational rehabilitation benefits, and therefore, additional months of benefits under Chapter 31, Title 38 United States Code are not warranted.  38 C.F.R. § 21.4020(b).  The United States Supreme Court has held that "payments of money from the Federal Treasury are limited to those authorized by statute."  See OPM v. Richmond, 496 U.S. 414, 416 (1990); McTighe v. Brown, 7 Vet. App. 29 (1994) (holding that Richmond meant VA could not pay benefits unless authorized by Congress).  

The Board acknowledges the Veteran's assertions and is grateful for the service rendered by both the Veteran and his father.  In this case, however, there is no basis in law or fact whereby the Veteran may be granted more than 48 months of combined education benefits.  The law, and not the evidence, is dispositive of the appeal.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  Unfortunately, the Board is bound by the law and is without authority to grant benefits on an equitable basis.  See 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  As such, the Board finds entitlement to educational assistance benefits under 38 U.S.C.A. Chapter 33 must be denied.  


ORDER

Entitlement to VA educational assistance benefits under 38 U.S.C.A. Chapter 33 is denied.



____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs