Citation Nr: 1518659	
Decision Date: 04/30/15    Archive Date: 05/05/15

DOCKET NO.  13-04 122	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


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) in her July 2012 application for educational assistance benefits.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

K. Hudson, Counsel



INTRODUCTION

The Veteran served on active duty from February 1998 to October 2011.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a determination by the Department of Veterans Affairs (VA) Regional Office education processing center (EPC) in Muskogee, Oklahoma, which found that the Veteran had elected educational assistance under the Post-9/11 GI Bill effective August 30, 2012.  

A second issue involving whether VA correctly processed Post-9/11 GI Bill benefits for the period of enrollment at National University from August 6, 2012, to September 1, 2012, is rendered moot by this decision, which finds that election for education benefits under the Post-9/11 GI Bill program was conditioned upon her having first used, or exhausted, her entitlement under the MGIB program.  As a result, the Veteran was entitled to educational assistance only under the MGIB program for the period from August 6, 2012, to September 1, 2012, and the payment provisions, such as for tuition, are not for application.  


FINDING OF FACT

The electronic VA Form 22-1990 filed by the Veteran in July 2012, applying for Chapter 33 educational assistance, was made conditional upon the Veteran's having first exhausted her entitlement under Chapter 30, in a clarification included in the "Remarks" section of the application form; therefore, she did not elect Chapter 33 educational assistance in lieu of Chapter 30.  


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 were not met in the July 2012 application form, which was made conditional upon the Veteran's having first exhausted her entitlement under Chapter 30.  38 U.S.C.A. §§ 3322 (West 2014); 38 C.F.R. §§ 21.9520, 21.9550 (2014). 


REASONS AND BASES FOR FINDING AND CONCLUSION

In view of the favorable outcome of this appeal, compliance with 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 2014)) need not be discussed. 

The Veteran received education benefits under the MGIB, and as of July 31, 2012, she had 1 month and 1 day of remaining entitlement under the MGIB.  

According to the statement of the case, the Veteran's undated electronic application for Post-9/11 GI Bill benefits (Chapter 33) was received in July 2012.  In this application, the Veteran specifically stated she currently had one month left on her MGIB entitlement and wished to apply for the 12 months of the Post-9/11 GI Bill.  

In a letter dated July 31, 2012, VA informed the Veteran that VA needed additional information concerning her election of Post-9/11 GI Bill benefits to "process your claim."  She was advised of the options available to her:  she could relinquish her remaining 1 month and 1 day of entitlement under the MGIB, in which case she would only receive 1 month and 1 day of entitlement under Chapter 33; or she could rescind her application for Chapter 33 benefits, and exhaust her Chapter 30 benefits before electing Chapter 33.  Notably, she was not informed that VA would process the claim under Chapter 33 if she failed to respond, and both options offered required affirmative action on her part.  

In August 2012, an enrollment certificate, specifically noted, at both the top and bottom of the form, to apply to Chapter 30, was received, certifying the Veteran's enrollment in a full-time course for the period from August 6, 2012, to September 1, 2012.  

The EPC processed the claim, awarding the Veteran benefits for the period through August 29, 2012, under Chapter 30, and the remaining period from August 30-September 1, 2012 under Chapter 33.  She was informed, in a September 2012 award letter, that she had 1 day of remaining entitlement under Chapter 33.  

The Veteran appealed this decision.  She contends that she followed the advice of a VA representative she spoke to in her application process.  In her substantive appeal, she stated that she thought that the last class she took would get her to 3 days of entitlement left after completion of the course.  She stated that she believed that if she applied for Chapter 33 benefits in advance, she would not have a break in educational assistance.  She also states that due to a divorce in March 2012, and her ex-husband's submission of a change of address form upon moving, she did not receive a significant amount of mail sent to her from March to September 2012, in particular, the letter from VA regarding the option to rescind.  The Board finds this statement entirely credible, given the circumstances and her otherwise conscientious and timely responses to VA as indicated by the remainder of the record.  

The aggregate period for which any person may receive assistance under two or more of various educational assistance programs, including Chapters 30 and 33, may not exceed 48 months (or the part-time equivalent).  38 C.F.R. § 21.4020(a) (2014).  Each of these individual programs of educational assistance, however, only permits 36 months of training.  See 38 C.F.R. §§ 21.7072 (36 months of full-time training under MGIB), 21.9550(a) (Subject to the provisions of § 21.4020 and this section, 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.A. chapter 33.).  The confluence of the various regulations has resulted in a situation whereby if the Veteran converts his or her MGIB entitlement to Post-9/11 GI Bill entitlement, the Veteran receives only the amount of time remaining on the MGIB entitlement.  If, however, he or she continues to use MGIB entitlement until it is exhausted, and then applies for Post-9/11 GI Bill benefits, he or she will receive an additional up to 12 months under the Post-9/11 GI Bill.  

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 RO found that the Veteran's July 2012 application irrevocably elected 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 issue before the Board, then, is whether the Veteran relinquished her remaining eligibility under Chapter 30 in her July 2012 application for Post-9/11 GI Bill benefits.  An individual may make an irrevocable election to receive benefits under Chapter 33 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," such as to constitute a relinquishment of Chapter 30 entitlement. 

In her application, the Veteran did not acknowledge that she wished to relinquish her Chapter 30 entitlement; instead, she clearly indicated that she wished to exhaust her entitlement to MGIB, and then use her 12 months of entitlement to Post-9/11 GI Bill in a remark added at the end of her application.  In this regard, at the beginning of the application form, it was noted that she acknowledged that if she elected chapter 33 in lieu of Chapter 30, her months of entitlement under Chapter 33 would be limited to the number of months of entitlement to remaining under Chapter 30, but that if she completely exhausted her entitlement under Chapter 30 before the effective date of her Chapter 33 election, she could receive up to 12 additional months of benefits under Chapter 33.  There was no indication that if she wished to exhaust her entitlement under Chapter 30, an additional application would be needed.  At the end of the application, in a section entitled "REMARKS," the Veteran added that she currently had one month left on her MGIB entitlement, and wished to apply for the 12 months of the Post-9/11 Bill.  It is clear that, although she did not use the specific word "exhaust" in reference to her MGIB entitlement, her intent was to use the MGIB entitlement, and then the Post-9/11 Bill entitlement.  

She requested that the election of Chapter 33 be effective August 30, 2012, but she also stated that her training would start September 4, 2012.  

Under these circumstances, the Board finds that the Veteran's VA Form 22-1990 submitted in July 2012 did not constitute an irrevocable election of Chapter 33 Post-9/11 GI Bill benefits in lieu of Chapter 30 benefits.  She clearly requested Chapter 33 benefits to be used after entitlement under Chapter 30 was exhausted.  The Board also finds that her allegation of non-receipt of a July 2012 letter from VA, requesting clarification of her intention is credible.  Nevertheless, even if she did receive it, the letter itself was insufficient to notify her that her claim would be considered as an election of Chapter 33 in lieu of Chapter 30 if she failed to respond.  Finally, the enrollment certificate for the term extending from August 6-September 1, 2012, was noted to be under the Chapter 30 program, providing further evidence to the EPC that she wished to first exhaust her Chapter 30 entitlement.

Particularly where the consequences of filing an irrevocable election are potentially so significant, strict compliance with the irrevocable election requirements is required.  Here, the election form itself included a "REMARKS" section, in which the Veteran stated that she wished to apply for the 12 months of Post-9/11 GI Bill, and that she still had 1 month of remaining MGIB entitlement.  The Board finds that this is sufficient to establish that her application did not constitute an irrevocable election of Chapter 33 benefits in lieu of Chapter 30 benefits.  Therefore, the entire certified term from August 6-September 1, 2012, must be considered under the Chapter 30 program.  Additionally, after that, any remaining entitlement under Chapter 30 must be exhausted before Chapter 33 benefits are implemented.  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).  


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 allowed.




______________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs