Citation Nr: 1605212 Decision Date: 02/10/16 Archive Date: 02/18/16 DOCKET NO. 14-15 256 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington THE ISSUE Entitlement to basic eligibility for educational assistance benefits under Chapter 33 of Title 38, United States Code (Post-9/11 GI Bill). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The appellant attended the Marion Military Institute from July 23, 2012, to May 8, 2013, and the United States Coast Guard Academy from July 1, 2013, to August 8, 2013. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 determination by VA Education Center in Muskogee, Oklahoma. In August 2015, this case was remanded by the Board in order to provide the appellant the benefit of a hearing. The appellant testified at a Travel Board hearing in September 2015 at the Seattle, Washington, RO, before the undersigned Veterans Law Judge (VLJ). A transcript of this proceeding has been associated with the claims file. The Board notes that, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2015) requires that the VLJ who chairs 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, the VLJ fully explained the issue on appeal during the hearing. Additionally, it is clear from the appellant's testimony that he had actual knowledge of the elements that were lacking to substantiate his claim. Significantly, the appellant has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the appellant, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) . FINDINGS OF FACT 1. The appellant's DD Form 214 reflects that he attended the Marion Military Institute from July 23, 2012, to May 8, 2013, and the United States Coast Guard Academy from July 1, 2013, to August 8, 2013. He was separated from the Coast Guard Academy due to failure of medical/physical procurement standards. 2. The appellant has insufficient qualifying active duty service for basic eligibility for educational assistance under the Post-9/11 GI Bill. CONCLUSION OF LAW The criteria for eligibility for educational assistance benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) have not been met. 38 U.S.C.A. §§ 101(2), (21)(A), (22), (24) , 3301, 3002(6), 3311, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102 , 3.159, 21.1031, 21.1032, 21.9500, 21.9505, 21.9520 (2015); VAOPGCPREC 18-94 (October 3, 1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, now codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2015), with implementing regulations published at 66 Fed. Reg. 45, 620 (Aug. 29, 2001) (now codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.316(a) (2015), describes VA's duty to notify and assist claimants in substantiating claims for VA benefits. In a case such as this, where the pertinent facts are not in dispute and the law is dispositive, there is no additional information or evidence that could be obtained to substantiate the claim, and the VCAA is not applicable. See Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (citing Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (holding that VCAA does not apply where there is extensive factual development in a case, reflected both in the record on appeal and the Board's decision, which indicates no reasonable possibility that any further assistance would aid the claimant in substantiating his claim). See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); see also Manning v. Principi, 16 Vet. App. 534 (2002); Mason v. Principi, 16 Vet. App. 129 (2002); Livesay v. Principi, 15 Vet. App. 165 (2001); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). As will be discussed in further detail below, the appellant's claim is being denied solely because of a lack of entitlement under the law. Accordingly, the Board has decided the appeal on the current record without any further consideration of the VCAA. However, the Board does note that the appellant has been provided the opportunity to submit evidence; he was afforded the opportunity to present testimony at a hearing before the Board; and all evidence pertinent to his claim has been obtained by VA. II. Analysis According to the appellant's statements and testimony of record, he essentially contends that he is entitled to Post-9/11 GI Bill benefits based on attendance at the Marion Military Institute and the United States Coast Guard Academy. He contends that he was led to believe that he was serving on active duty during his time at the Marion Military Institute and the United States Coast Guard Academy. He asserts, therefore, that this time should be considered as part of active military service and should qualify him for eligibility for education benefits under the Post-9/11 GI Bill. Eligibility for educational assistance under Chapter 33 based on active duty service after September 10, 2001, requires minimum service. The individual must have served a minimum of 90 aggregate days of active duty excluding active duty for entry level and skill training and, after completion of such service, (1) continued on active duty; (2) was discharged from service with an honorable discharge; (3) was released from service characterized as honorable and placed on the retired list, temporary disability retired list, or transferred to the Fleet Reserve or the Fleet Marine Corps Reserve; (4) was released from service characterized as honorable for further service in a reserve component; or (5) was discharged or released from service for a medical condition that preexisted such service and is not determined to be service connected; hardship, as determined by the Secretary of the military department concerned; or a physical or mental condition that interfered with the individual's performance of duty but was not characterized as a disability and did not result from the individual's own misconduct. 38 U.S.C.A. § 3311 ; 38 C.F.R. § 21.9520(a). Alternatively, the individual must have served a minimum of 30 continuous days on active duty and, after completion of such service, was discharged or released from active duty under other than dishonorable conditions due to a service-connected disability. 38 U.S.C.A. § 3311; 38 C.F.R. § 21.9520(b). 38 C.F.R. § 21.9505 provides that for the purposes of this subpart (governing the administration and payment of educational assistance under 38 U.S.C. Chapter 33 (Post 9/11 GI Bill)), the following definitions apply: Active duty means full-time duty in the regular components of the Armed Forces or under a call or order to active duty under 10 U.S.C. 688 , 12301(a), 12301(d), 12301(g), 12302, or 12304. Further, 38 C.F.R. § 21.9505 provides that active duty does not include: (1) Full-time National Guard Duty performed under 32 U.S.C. orders; (2) Any period during which the individual (i) Was assigned full-time by the Armed Forces to a civilian institution to pursue a program of education that was substantially the same as programs of education offered to civilians; (ii) Served as a cadet or midshipmen at one of the service academies; or (iii) Served under the provisions of 10 U.S.C. 12103(d) pursuant to an enlistment in the Army National Guard, Air National Guard, Army Reserve, Naval Reserve, Air Force Reserve, Marine Corps Reserve, or Coast Guard Reserve; (3) A period of service (i) Required by an officer pursuant to an agreement under 10 U.S.C. 2107(b); (ii) Required by an officer pursuant to an agreement under 10 U.S.C. 4348 , 6959, or 9348; (iii) That was terminated because the individual is considered a minor by the Armed Forces, was erroneously enlisted, or received a defective enlistment agreement; or (iv) Counted for purposes of repayment of an education loan under 10 U.S.C. Chapter 109; or (4) A period of Selected Reserve service used to establish eligibility under 38 U.S.C. Chapter 30 or 10 U.S.C. Chapter 1606 or 1607. 38 U.S.C.A. § 3301 (West 2015); 38 C.F.R. § 21.9505 (2015). Turning to the facts of this case, as noted, the appellant attended the Marion Military Institute from July 23, 2012, to May 8, 2013, and the United States Coast Guard Academy from July 1, 2013, to August 8, 2013. With regard to his time at the United States Coast Guard Academy, his DD-214 Form noted that he was separated from the Coast Guard Academy due to failure of medical/physical procurement standards. (At his hearing, he testified that his roommate claimed to have witnessed the appellant sleep walking, and, as a result, he was released from the Coast Guard Academy.) The appellant's DD-214 Form specifically noted that this service included cadet service, which is not considered active. As noted above, any period of service during which an individual served as a cadet or midshipman at one of the service academies is not considered active duty on which an individual's entitlement to educational assistance is based. 38 C.F.R. § 21.9505(2)(ii). As such, the appellant's time as a cadet at the United States Coast Guard Academy would not contribute to qualifying service for the purposes of entitlement to educational assistance. With regard to the appellant's time at Marion Military Institute, his DD-214 Form noted his grade, rate, or rank as seaman apprentice and noted that he was separated from Marion Military Institute for miscellaneous/general reasons. While this DD-214 Form did not specifically indicate that this service was not considered active duty, the Board notes that the evidence of record does not reflect that his attendance at Marion Military Institute met the aforementioned requirements for active duty service under 38 C.F.R. § 21.9505. Specifically, the appellant did not serve on full time duty as a member of the regular component of the Armed Force or under a call or order to active duty under 10 U.S.C. 688, 12301(a), 12301(d), 12301(g), 12302, or 12304. Further, the Board notes that the evidence of record does not reflect that the appellant served in the National Guard in any capacity either. Under 38 C.F.R. § 21.9505, active duty specifically does not include any period during which the individual was assigned full-time by the Armed Forces to a civilian institution to pursue a program of education that was substantially the same as programs of education offered to civilians. Regardless of whether or not the appellant was assigned to Marion Military Institute by the Armed Forces, the Marion Military Institute is not a service academy, and it falls under the category of such a civilian institution. As such, the appellant's time at Marion Military Institute would not contribute to qualifying service for the purposes of entitlement to educational assistance. Although the Board is sympathetic toward the appellant, the Board is bound by law, and its decision is dictated by the relevant statutes and regulations. Moreover, the Board is without authority to grant benefits simply because it might perceive such a grant to be equitable. See Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board also observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). In light of the foregoing, the Board finds that the appellant does not have the requisite qualifying active service for the purpose of entitlement to basic eligibility for educational assistance under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) and his claim must therefore be denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to basic eligibility for educational assistance benefits under Chapter 33 of Title 38, United States Code (Post-9/11 GI Bill) is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs