Citation Nr: 1601158 Decision Date: 01/12/16 Archive Date: 01/21/16 DOCKET NO. 12-34 523 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office and Education Center (RO) 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). ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from March 2002 to March 2008. This matter comes before the Board of Veterans' Appeals (Board) from a July 2012 determination by the RO that the Veteran had exhausted his VA educational benefits. The veteran requested the opportunity to present testimony in support of his appeal at a personal hearing before a Veterans Law Judge. Such a hearing was scheduled via video conference in September 2015. The veteran was notified of the scheduled time and place but failed to appear for the hearing. When an appellant elects not to appear at the prescheduled hearing date, the request for a hearing will be considered to have been withdrawn. 38 C.F.R. § 20.704(d). His appeal will thus be adjudicated without further delay based upon all the evidence presently of record. The Board has reviewed the Veteran's paper education file and also evidence available in his VA electronic files. FINDINGS OF FACT 1. The Veteran was adequately notified of the consequences of electing Chapter 33 benefits prior to exhausting his Chapter 30 benefits. 2. The Veteran made an informed decision to irrevocably elect Chapter 33 benefits effective as of 8/01/2011, approximately three months and 22 days prior to the exhaustion of his Chapter 30 benefits. 3. The RO properly switched the Veteran's remaining education entitlement from the Chapter 30 program to the more generous Chapter 33 program effective as of 8/01/2011, based upon the Veteran's expressed wishes. CONCLUSION OF LAW The criteria for an irrevocable election for education benefits under the Chapter 33, Post-9/11 GI Bill program in lieu of benefits under the Chapter 30, MGIB program, have been met. 38 U.S.C.A. §§ 3301 -24 (West 2014); 38 C.F.R. §§ 21.9520, 21.9550 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION For educational assistance claims, the regulations delineating the specific notification and assistance requirements are set forth in 38 C.F.R. §§ 21.1031 (duty to notify), and 21.1032 (duty to assist). Under 38 C.F.R. § 21.1031(b) "if a formal claim for educational assistance is incomplete, or if VA requires additional information or evidence to adjudicate the claim, VA will notify the claimant of the evidence and/or information necessary to complete or adjudicate the claim and the time limit provisions of § 21.1032." These provisions also apply to the Post 9/11 GI Bill program (Chapter 33 benefits). 38 C.F.R. § 21.9510. The requirements are based on the more generally applicable provisions of the Veterans Claims Assistance Act of 2000 (VCAA). In cases such as this, where the law, rather than the underlying facts or development of the facts, is dispositive of the matter, the provisions of the VCAA have no effect on the appeal. See VAOPGCPREC 5-2004 (June 23, 2004); Manning v. Principi, 16 Vet. App. 534, 542-43 (2002). Indeed, 38 C.F.R. § 21.1031(b) 's notice provisions do not apply when "undisputed facts render the claimant ineligible for the claimed benefit . . ." Id. , see also 38 C.F.R. § 21.1032(d). As this decision will explain, the facts of this case are undisputed and, as a result of his irrevocable election of benefits under Chapter 33 of title 38 of the United States Code, the Veteran is ineligible for the claimed benefit. For these reasons, the Board finds that no further action is necessary pursuant to VA's duties to notify and assist. Shortly after his discharge from service, the Veteran submitted an application for Montgomery GI Bill Educational Assistance Program (MGIB), also known as Chapter 30 benefits. This application was received in September 2008, and was approved by VA the same month. The Veteran attended school on a regular basis for the next few years, receiving VA MGIB benefits throughout. In August 2011, the Veteran submitted an application to "change from MGI Bill to Chapter 33." Chapter 33 is the portion of the governing statute which sets out the provisions of the post-9/11 GI Bill. The application contained the following statement: By electing Chapter 33, I acknowledge that I understand the following: -I may not receive more than a total of 48 months of benefits under two or more programs. -If electing chapter 33 in lieu of chapter 30, my months of entitlement under chapter 33 will be limited to the number of months of entitlement remaining under chapter 30 on the effective date of my election. However, if I completely exhaust my entitlement under chapter 30 before the effective date of my chapter 33 election, I may receive up to 12 additional months of benefits under chapter 33. -My election is irrevocable and may not be changed. [Emphasis in original] The Veteran elected to receive chapter 33 benefits in lieu of chapter 30 benefits and he selected the date of 8/01/2011 as the beginning date of his chapter 33 benefits. He signed the application and dated it 7/27/2011. In August 2011, the RO issued the Veteran a Certificate of Eligibility stating that he was entitled to benefits for an approved program of education under the Post-9/11 GI Bill. The certificate specified that he had 3 months and 22 days of full-time benefits remaining. In September 2011, the RO notified him that they had paid his university for one month of tuition and fees, and that he would be paid for a month of housing allowance. This letter informed him that he had 2 months and 23 days remaining of post-9/11 GI Bill benefits. In October 2011, the RO notified the Veteran that VA was paying another month of tuition and fees on his behalf, and that he would receive another month of housing allowance. He had 1 month and 24 days remaining of post-9/11 GI Bill benefits. A November 2011 letter informed the Veteran that VA was paying another month of tuition and fees on his behalf, and that he would receive another month of housing allowance. At that point, he had only 19 days remaining of post-9/11 GI Bill benefits. In a summary of his educational benefits mailed in January 2012, the RO noted that VA had paid tuition of $5,007 on the Veteran's behalf since August 2011, when he was approved for post-9/11 GI Bill benefits. This summary also informed him that he had 18 days remaining eligibility for post-9/11 GI Bill benefits. In May 2012, the RO notified the Veteran that he had used up his remaining post-9/11 GI Bill benefits, and that he had 0 months and 0 days of eligibility. A July 2012 letter to the Veteran informed him that his claim for educational benefits could not be approved because he had exhausted all of his education benefits under multiple VA education programs. It is this determination that the Veteran has appealed. In an August 2012 notice of disagreement, the Veteran requested to rescind his application for post-9/11 GI bill benefits that he had submitted on July 27, 2011. He explained that initially he had intended to fully utilize and exhaust his entitlement to Chapter 30 benefits and then transfer to the post-9/11 GI Bill benefits so that he could the receive twelve additional months of VA education benefits. In his November 2012 substantive appeal, he further explained that he had been given misinformation at the time he changed his benefits as he was informed he would receive an additional twelve months of 9/11 GI Bill benefits. He stated he was informed he would lose his remaining three months of Chapter 30 benefits, but that he would still have the full twelve months of 9/11 GI Bill benefits. He asserted that if he had been aware of how the rules worked, he would not have changed his educational benefit. Upon review, we observe that the Veteran has some educational entitlement under both programs (Chapter 30 and Chapter 33). 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). Each of these individual programs of educational assistance, however, only permits 36 months of training. 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.). Nevertheless, an individual who, as of August 1, 2009, has used entitlement under 38 U.S.C.A. Chapter 30, but retains unused entitlement under that chapter, makes an irrevocable election to receive educational assistance under the provisions of 38 U.S.C.A. Chapter 33, instead of educational assistance under the provisions of chapter 30, 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. 38 C.F.R. § 21.9550(b)(1). Thus, as interpreted by VA, the confluence of the various regulations has resulted in potentially serious consequences for a Veteran who is eligible for both MGIB and Post-9/11 GI Bill benefits, and who has little remaining MGIB entitlement. If the Veteran converts his or her MGIB entitlement to Post-9/11 GI Bill, 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 twelve months under the Post-9/11 GI Bill. A link accessed through the VA Post-9/11 GI Bill website, consisting of answers to frequently asked questions (FAQ), states, "you may be eligible for more than one VA education benefit program. However, you may only receive payments from one program at a time. You can receive a maximum of 48 months of benefits under any combination of VA education programs you qualify for." Although this statement does not carry the force of law, it is an indication of VA's vision of the interaction between the various educational assistance programs. The Post-9/11 GI Bill was intended by Congress to be an expansion of VA educational assistance, compared with the immediately preceding programs. In enacting the Bill, Congress made findings including the following: (1) On September 11, 2001, terrorists attacked the United States, and the brave members of the Armed Forces of the United States were called to the defense of the Nation. (2) Service on active duty in the Armed Forces has been especially arduous for the members of the Armed Forces since September 11, 2001. . . . (6) It is in the national interest for the United States to provide veterans who serve on active duty in the Armed Forces after September 11, 2001, with enhanced educational assistance benefits that are worthy of such service and are commensurate with the educational assistance benefits provided by a grateful Nation to veterans of World War II. Pub.L. 110-252, Title V, § 5002, June 30, 2008, 122 Stat. 2357. Indeed, the provisions of this Bill are substantially more generous than the MGIB. Although designed to assist Veterans who served on active duty during the post 9/11 era, however, the effective date of the bill was August 1, 2009. The Board takes judicial notice of the fact that initial implementation of the bill was somewhat rocky, with some Veterans receiving incomplete and even inaccurate information at that time. For instance, the official VA forms used for the application did not always contain the informational language that the election was irrevocable, which the Veteran's application contained-this language was added at some point after the initial implementation of the post 9/11 benefit program in 2009. This Veteran, however, initially applied to switch to the Chapter 33 provisions in August 2011, a point in time when there was less confusion and the program was being administered more fairly. The August 2011 application which he signed and submitted contained a clear notification, which is set forth above, about the implications of electing Chapter 33 benefits before exhausting Chapter 30 benefits. In this case, the Veteran claimed benefits under the Post-9/11 GI Bill in August 2011, and signed an acknowledgment that he understood his election was irrevocable and that he wished his new benefits to begin effective in August 2011. The RO converted his remaining MGIB entitlement to the Post-9/11 GI Bill program, and awarded 3 months and 22 days of "remaining" educational assistance. He was informed of this grant of benefits in the certificate of eligibility dated in August 2011. He did not contest this calculation upon the first notice in August 2011, or indeed upon the second, third, or fourth notices in September 2011, October 2011, November 2011, or January 2012. Rather, he disagreed with the VA's calculation of his education benefits eligibility only after he was notified his eligibility had been exhausted in July 2013. Thus, the primary issue before the Board is whether the Veteran made an irrevocable election of Post-9/11 GI Bill benefits. See 38 C.F.R. §§ 21.9520 , 21.9550. (In order to receive benefits under the Post-9/11 GI Bill in lieu of the MGIB, an irrevocable election must be made.). An individual may make an irrevocable election to receive benefits under Chapter 33 by properly completing VA Form 22-1990, submitting a transfer-of-entitlement designation under this chapter to the Department of Defense, or submitting a written statement that includes the following: (i) Identification information (including name, social security number, and address); (ii) If applicable, an election to receive benefits under chapter 33 in lieu of benefits under, e.g., the MGIB; (iii) The date the individual wants the election to be effective; and (iv) An acknowledgement that the election is irrevocable (e.g., "I understand that my election is irrevocable and may not be changed."). 38 C.F.R. § 21.9520(c)(2). In this case, the claim was on a VA Form 22-1990, and the question is, therefore, whether such form was "properly completed." It appears that the Veteran printed the form and completed it with a typewriter, then he signed it, and mailed it to the VA. Significantly, he selected August 1, 2011, as the date he desired his Chapter 33 benefits to begin. He also checked the box indicating he understood his election was irrevocable and could not be changed, and that he would be limited to the number of months of entitlement remaining under Chapter 30 on the effective date of his election, as opposed to completely exhausting his entitlement under Chapter 30 before the effective date of his chapter 33 election, and then receiving up to twelve additional months of Chapter 33 benefits. He checked a second box indicating that he wished to receive Chapter 33 benefits in lieu of his former Chapter 30 benefits. The Board also finds that in order for the form to be "properly completed," there must be sufficient information to convey that the Veteran has acknowledged that the election is irrevocable. In other words, the Veteran cannot be held to a lesser standard of acknowledgement simply because a standard form was used, unless that form contains the necessary information. As documented in the file, the VA Form 22-1990 which the Veteran signed does contain such acknowledgement and bears the Veteran's signature. The Board therefore finds that the Veteran's application form was properly completed and that the form itself contained adequate information as to how the new Chapter 33 benefit would be implemented in his case. Careful reading of the information contained in the form which bears the Veteran's signature does not bear out his interpretation that he should be paid one year of Chapter 33 benefits rather than the remainder of his Chapter 30 entitlement; the Board finds that the explanation contained in the application form is clear as to how the benefits would be applied if a Veteran applies for Chapter 33 benefits prior to exhausting the Chapter 30 benefits. Similarly, the Veteran's argument that he relied upon bad advice from whoever assisted him in submitting the application does not support his claim for additional VA educational benefits. "Erroneous advice given by a government employee cannot be used to estop the government from denying benefits." McTighe v. Brown, 7 Vet. App. 29, 30 (1994); see also Walker v. Brown, 8 Vet. App. 356, 359 (1995). In this case, the Veteran himself was responsible for carefully reading and understanding the document he signed. In sum, the Veteran made an election of Chapter 33 benefits which he now wishes to rescind. However, under the governing law and regulation, he may not do so, as his election was irrevocable. 38 C.F.R. § 21.9650. The Board empathizes with the Veteran, and acknowledges the confusing nature of the laws and regulations governing educational benefits. However, the Board is unable to reverse the Veteran's irrevocable election. The preponderance of the evidence is against the claim and the appeal is denied. The law does provide for equitable relief when there has been administrative error. 38 U.S.C.A. § 503. The Board offers no opinion on this matter but advises that if the Veteran wishes to petition for equitable relief, he must file such a petition with the Secretary given that the authority to award equitable relief under that statute is committed to the sole discretion of the Secretary. The Board is without jurisdiction to consider that which is solely committed to the Secretary's exercise of that discretion. See McCay v. Brown, 9 Vet. App. 183, 189 (1996). Continued on next page ORDER The Veteran's election of 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) was irrevocable; the appeal is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs