Citation Nr: 1537344 Decision Date: 09/01/15 Archive Date: 09/10/15 DOCKET NO. 14-01 482 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to more than 36 months of educational assistance benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill). REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran had active service from January 1978 to April 1978, from July 1978 to July 1989, from September 1991 to December 1991, from April 2004 to July 2004 and from October 2005 to December 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Prior to certification to the Board the Veteran did not have representation, however, following certification to the Board in April 2014, the Veteran, in June 2014, submitted VA Form 21-22a, in favor of Texas Veterans Commission, and such is associated with claims file within the Veterans Benefits Management System (VBMS). Because the request for representation was received by the Board within 90 days of certification of his appeal, the Board recognizes Texas Veterans Commission as the Veteran's representative. 38 C.F.R. § 20.1304 (2015). In regard to the issue of whether the Veteran is eligible for 12 months of entitlement under the Veterans Retraining Assistance Program (VRAP) and whether VA took appropriate action to determine Chapter 1607 eligibility, these matters were raised sua sponte by the RO in the March 2014 supplemental statement of the case. While such were mentioned by the Veteran, in his January 2014 VA Form 9, substantive appeal, he indicated such were errors and/or facts he disagreed with; however, he clearly indicated the benefit he was seeking was an additional 12 months of benefits with respect to the post 9/11 GI Bill. Furthermore, the Veteran did not perfect an appeal with respect to these issues. Therefore, the Board finds that it does not have jurisdiction them and there are not further addressed. A January 2015 VA 21-1900, Disabled Veterans Application for Vocational Rehabilitation, is associated with the record within VBMS, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). FINDINGS OF FACT 1. The Veteran did not use any of his available 36 months of Chapter 30 educational assistance benefits (Montgomery GI Bill). 2. Effective August 5, 2011, the Veteran elected to transfer the balance of his entitlement to educational benefits, which consisted of 36 months, to two children under Chapter 33 (Post-9/11 GI Bill). CONCLUSION OF LAW The Veteran has no legal entitlement to additional VA educational assistance beyond the 36 months already transferred under Chapter 33, Title 38, United States Code. 38 U.S.C.A. § 3319 (West 2014); 38 C.F.R. §§ 21.4020, 21.9550 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). For educational assistance claims, including the Post-9/11 GI Bill, the regulations delineating the specific notification and assistance requirements are set forth in 38 C.F.R. §§ 21.1031, 21.1032 (2015). See 38 C.F.R. § 21.9510 (2015). Where, as here, the law is dispositive in a matter, the notice provisions of the VCAA and, by analogy, the comparable educational assistance provisions, have no effect. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). That is because no further notice or assistance to the claimant would result in a different outcome because, as will be addressed below, the facts make clear that entitlement to educational assistance benefits in excess of 36 months under the Post-9/11 GI Bill are not warranted as a matter of law. See Manning v. Principi, 16 Vet. App. 534, 542-543 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004; see also Mason v. Principi, 16 Vet. App. 129 (2002) (the veteran did not serve on active duty during a period of war and was not eligible for nonservice-connected pension benefits; because the law as mandated by statute, and not the evidence, is dispositive of the claim, the VCAA is not applicable); Livesay v. Principi, 15 Vet. App. 165 (2001) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law). II. Merits of the Claim The Veteran's active service qualified him for both Chapter 30 (Montgomery GI bill) benefits and Chapter 33 (Post 9/11 GI bill) benefits. The Veteran did not use his educational benefits under Chapter 30 and effective August 5, 2011 the Veteran transferred 18 months of educational benefits each to two children, for a transfer of 36 months total. The Veteran argues that he should be entitled to an additional 12 months of entitlement under Chapter 33. Initially, the Board notes that the issue in this case is not whether the Veteran irrevocably elected Chapter 33 benefits in lieu of Chapter 30 benefits, or any other aspect of entitlement to benefits under Chapter 33 for his dependents. The question is limited to whether the Veteran meets the requirements for an additional 12 months of entitlement to educational assistance under Chapter 33. A review of the record shows that effective August 5, 2011 the Veteran transferred 18 months of educational benefits each to two children. The Chapter 33 provisions that pertain to the authority to transfer unused education benefits to family members are found in 38 U.S.C.A. § 3319 (West 2014). The record reflects February 2012 Transfer of Eligibility (TOE) acknowledgments were checked by the Veteran. The Post-9/11 GI Bill TOE acknowledgement, indicated, in pertinent part, "I understand I may transfer up to 36 months (or remaining months of benefits, whichever is less) of my education benefits to my spouse or children..." The record also includes correspondence from the Department of Defense to the Veteran, dated in February 2012, that the requested transfer of unused Post-9/11 GI benefits to his immediate family members, specifically transfer to two children of 18 months each was approved with a transfer status date of August 5, 2011. Such is also reflected in a February 2012 TOE approval form, which documented that Post 9/11 GI Bill Chapter 33 benefits of 18 months each were selected for transfer to two children. The record reflects the Veteran subsequently filed, after separation from active duty in December 2012, VA Form 22-1990, in which he reported he was applying for the additional 12 months under Chapter 33. However, within the application itself the Veteran did acknowledge that he had previously applied for Chapter 33 benefits. Subject to the provisions of § 21.4020, 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. 38 C.F.R. § 21.9550(a) (2015). Where an individual is eligible for two or more education programs, the aggregate period for which any person may receive assistance may not exceed 48 months (or the part-time equivalent). 38 C.F.R. § 21.4020 (2015). While entitlement to an additional 12 months past the 36 months maximum may exist under 38 C.F.R. § 21.4020 in certain circumstances, the entitlement period for Chapter 33 benefits is limited by 38 C.F.R. § 21.9550(b)(2). Specifically, an individual who, as of August 1, 2009, was eligible under 38 U.S.C. Chapter 30, but had not used any entitlement under that program, will receive 36 months of entitlement under chapter 33. 38 C.F.R. § 21.9550(b)(2). Except as provided in §§ 21.9560(d) (situations where entitlement is not charged), 21.9570(m) (dependent transferred benefits and dependent eligible based on his or her own service), and 21.9635(o) (exceptions when exhaustion of entitlement occurs mid-course, semester, or quarter), no individual is entitled to more than 36 months of full-time educational assistance under 38 U.S.C. chapter. 33. 38 C.F.R. § 21.9550(b)(3). In short, the Veteran was entitled to 36 months of benefits under chapter 33 and there is no provision that entitles him to an additional 12 months of entitlement. 38 C.F.R. § 21.9550(b). It is unfortunate that the Veteran mistakenly understood that he would receive an additional 12 months of educational benefits under Chapter 33 in addition to the 36 months transferred. The Board recognizes the confusing nature of some VA education benefits and the different programs and rules. While the Board understands the Veteran's contentions and sympathizes with the Veteran's situation, 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 2014). Where the law and not the evidence is dispositive of the issue before the Board, the claim must be denied because of the absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Because the Veteran has no legal entitlement to any additional VA educational assistance under 38 U.S.C.A. Chapter 33, beyond what he has already received, it is the law in this case, and not the evidence, that is dispositive of the appeal. As the law is dispositive of the instant case, the benefit of the doubt rule is not for application. For the foregoing reasons, the Board finds the Veteran's entitlement to Chapter 33 educational assistance benefits was limited to the 36 months already granted. ORDER Entitlement to more than 36 months of educational assistance benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill), is denied. ____________________________________________ Nathan Kroes Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs