Citation Nr: 1521622 Decision Date: 05/20/15 Archive Date: 05/26/15 DOCKET NO. 13-24 851 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office Education Center in Buffalo, New York THE ISSUE Entitlement to an effective date prior to November 7, 2011 for the election to receive education benefits under the Post-9/11 GI Bill (Chapter 33) in lieu of benefits under the Montgomery GI Bill (Chapter 30). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran had active service from October 2000 to April 2004 and from April 2004 to May 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) Education Center in Buffalo, New York. In March 2014, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The hearing transcript is associated with the claims file. The issue of entitlement to a waiver of overpayment of education benefits has been raised by the record, including in a September 2013 VA Form 646, Statement of Accredited Representative in Appealed Case, as well as in March 2014 testimony. As this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ), it is referred to the AOJ for appropriate action. FINDING OF FACT In November 2011, the Veteran submitted an application to elect to receive benefits under the Post-9/11 GI Bill in lieu of benefits under the Montgomery GI Bill wherein he specified November 7, 2011 as the effective date for the election. CONCLUSION OF LAW The criteria for an effective date prior to November 7, 2011 for the election to receive educational benefits under the Post-9/11 GI Bill in lieu of benefits under the Montgomery GI Bill are not met. 38 U.S.C.A. § 3311(West 2014); 38 C.F.R. §§ 21.9520, 21.9550, 21.9625(l) (2014). REASONS AND BASES FOR FINDING AND CONCLUSION VA has duties to notify and assist claimants. For educational assistance claims, the regulations delineating the specific notification and assistance requirements are set forth in 38 C.F.R. §§ 21.1031, 21.1032 (2014). Such was provided in VA correspondence issued in December 2011. Nevertheless, the facts in this case are not in dispute and the claim is being denied as a matter of law. As such, the Board finds that further discussion as to VA's duties to notify and assist is not warranted. The provisions of 38 C.F.R. § 3.103(c)(2) (2013) require that a Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the March 2014 hearing, the VLJ asked questions relevant to the information and evidence necessary to substantiate the claim, as well as solicited information relevant to the submission of evidence that might have been overlooked and that might substantiate the claim. The Veteran has not suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet App 488 (2010). In November 2011, the Veteran submitted a VA Form 22-1990, Application for VA Education Benefits, requesting Chapter 33 benefits in lieu of Chapter 30 benefits. The Veteran specified November 7, 2011 as the effective date for the election of Chapter 33 benefits. He argues, however, that the selection of the effective date was based on incorrect advice received from a VA call center. The desired effective date was August 29, 2011, which was the date of course enrollment. At the March 2014 hearing, and in other statements, the Veteran testified that he called VA about transferring from the Montgomery GI Bill to the Post-9/11 GI Bill and was advised that he should state the current date as the effective date desired for the election, and that payments would be made retroactively effective from the beginning date of the course enrollment. In March 2014 testimony, the Veteran explained, that based on his miliary experience post-dating forms was not allowed. Thus, he testified, that he sought clarification from VA as he did not want to inadvertently fraudulently complete the form; he maintains he was told by VA personnel to utilize the date the form was submitted for the effective date desired. Pursuant to regulation, where an individual who, as of August 1, 2009, has used entitlement under 38 U.S.C. Chapter 30, but retains unused entitlement under that chapter, and makes an irrevocable election to receive educational assistance under the provisions of 38 U.S.C. Chapter 33 instead of educational assistance under the provisions of Chapter 30, he or she will be limited to one month (or partial month) of entitlement under Chapter 33 for each month (or partial month) of unused entitlement under Chapter 30 (including any months of Chapter 30 entitlement previously transferred to a dependent that the individual has revoked). 38 C.F.R. § 21.9550(b)(1) (2014). When an individual elects to receive benefits under Chapter 33 in lieu of benefits under Chapter 30, the election is irrevocable and eligibility under Chapter 30 is relinquished. See 38 C.F.R. § 21.9520(c)(1) (2014). In October 21, 2011 VA correspondence, the Veteran was notified that he had been awarded educational benefits under the Chapter 30, Montgomery GI Bill (MGIB), effective August 29, 2011 through December 21, 2011, based on his application for such. In response to his November 7, 2011 application to elect to receive Chapter 33 benefits in lieu of Chapter 30 (MGIB) benefits, the Veteran received VA correspondence, dated December 7, 2011 that notified him that his educational assistance under Chapter 30 had been terminated effective November 7, 2011, and that he had 25 months and 16 days remaining of his Chapter 30 entitlement. In correspondence dated December 9, 2011, VA notified the Veteran he had been awarded education benefits under the Post-9/11 GI Bill (Chapter 33) and reported his educational institution had indicated enrollment beginning on August 29, 2011. In February 2012 VA correspondence, sent in response to a congressional inquiry, VA advised that the Veteran had been awarded Chapter 33 benefits at the 100% level for his enrollment in graduate credit hours for the period from August 29, 2011 to December 21, 2011; however, as the Veteran elected to receive Chapter 33 benefits as of November 7, 2011, his payments are reflective of that election date. The Veteran indicated his dissatisfaction in a congressional inquiry in December 2011, which requested his start date be changed to match the enrollment certification sent in by his school (August 29, 2011) and also referenced his reliance on VA guidance in selecting the date on his application at issue. The Veteran is competent to report the substance of his phone call to VA seeking clarification and the Board has no reason to doubt the credibility of his information. The Veteran's assertion that he erroneously selected the November 2011 date based on a misunderstanding of the benefits is supported by his prompt congressional inquiry regarding the mistake. As noted above, however, the Veteran specified November 7, 2011 as the effective date for his election in his application submitted in November 2011, but is now seeking an effective date of August 29, 2011. As such, the Board has considered whether the law allows the retroactive election of benefits under the Post-9/11 GI Bill. Under 38 C.F.R. § 21.9625(l) (2014), if an individual makes an election to receive benefits under Chapter 33 in lieu of benefits under Chapter 30, VA will begin paying benefits under Chapter 33 effective the later of: (1) August 1, 2009; (2) The date the individual became eligible for educational assistance under Chapter 33; (3) One year before the date the valid election request was received; or (4) The effective date of the election as requested by the claimant. On review, provision (3) clearly indicates that a retroactive effective date is allowed, up to one year from the date of the election, thus August 29, 2011 is a valid election date. However, the applicable law does not provide for amendment of the requested effective date of the election on subsequent request by the Veteran following processing of his application. Thus, while applicable law and regulations would have permitted the selection of an effective date of August 29, 2011 at the time the election was made, there is no provision for later amendment of the election date selected, as is the circumstance of this case. As his election of education benefits under the Post-9/11 GI Bill in lieu of the Montgomery GI Bill is irrevocable, so is the effective date selected for that election. The Board finds that the election encompasses its effective date selected. As such, the Board finds that an effective date pror to November 7, 2011 is not warranted. ORDER Entitlement to an effective date prior to November 7, 2011 for the election to receive educational benefits under the Post-9/11 GI Bill, in lieu of benefits under the Montgomery GI Bill, is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs