Citation Nr: 1629098 Decision Date: 07/21/16 Archive Date: 08/01/16 DOCKET NO. 13-16 787 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to additional Department of Veterans Affairs (VA) educational assistance benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran served on active duty from May 2000 to January 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from regional office (RO) decisions of July 2012 and September 2012. In June 2015, the appellant appeared at a videoconference hearing held before the undersigned. A transcript is of record. FINDINGS OF FACT 1. The Veteran received a combined total of 48 months of VA education benefits under the Montgomery GI Bill, the VR&E program, and the Post 9/11 GI Bill. 2. At the time of the exhaustion of the Veteran's 48 months of VA education benefits, he was receiving benefits under the Post-9/11 GI Bill, and was not enrolled in a VR&E rehabilitation program. CONCLUSION OF LAW The Veteran has no legal entitlement to additional VA educational assistance benefits under Chapter 33, Title 38, United States Code. 38 U.S.C.A. § 3695 (West 2014); 38 C.F.R. §§ 21.4020, 21.9550 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duties to notify and assist claimants. 38 U.S.C.A. §§ 5103 , 5103A (West 2014); 38 C.F.R. § 3.159 (2015). 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 (2015). In this case, however, the essential facts are not in dispute; the case rests on the interpretation and application of the relevant law. The VCAA does not affect matters on appeal when the issue is limited to statutory interpretation. See Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also VAOPGCPREC 2-2004 (2004), 69 Fed. Reg. 25180 (2004) (holding that VCAA notice was not required where evidence could not establish entitlement to the benefit claimed). There is no possibility that any additional notice or development would aid the Veteran in substantiating his claim. 38 U.S.C.A. §§ 5103, 5103A (West 2014); see Dela Cruz. Thus, any deficiency of notice or of the duty to assist constitutes merely harmless error. In September 2009, the Veteran submitted an application for VA education benefits, electing to receive benefits under the Post-9/11 GI Bill. On his application form, he reported that he had previously earned a BA in Liberal Studies from Central Florida and an MBA from Phoenix Online, which he completed in 2009. He was requesting benefits to attend New York University to earn a BA degree in writing. In October 2009, the Veteran submitted another application, again electing to receive benefits under the Post-9/11 GI Bill. This time, he did not identify the school or educational objective, and he noted that he had previously earned a BA in Business from Central Florida in 2000, and an MBA in 2009 from Phoenix Online. In January 2010, he was furnished a certificate of eligibility for Post-9/11 GI Bill education benefits. He was informed that he had 18 months and 25 days of full time benefits. According to a master record, this was based on his having used 17 months and 5 days of Chapter 30 entitlement (Montgomery GI Bill), with 18 months and 25 days remaining, which he relinquished in favor of receiving Chapter 33 (Post-9/11 GI Bill) benefits for his remaining entitlement. In January 2011, an enrollment certificate for a period of training at Fordham University was received, certifying the Veteran's full time enrollment for the period from January 18, 2011, to May 17, 2011. In January 2011, he was informed that he had been awarded education benefits under the Post-9/11 GI Bill for the certified period of enrollment. He was informed, in pertinent part, that as of May 17, 2011, he would have 14 months and 25 days of remaining eligibility. A letter dated in March 2011 provided the same information concerning remaining eligibility. In May 2011, another enrollment certificate was received, and the Veteran was informed that he was granted Post-9/11 GI Bill benefits for the period from May 31, 2011, to August 4, 2011, after which he would have 12 months and 8 days of remaining entitlement. In August 2011, he was awarded Post-9/11 GI Bill benefits for the period from August 31, 2011, to December 21, 2011, and informed that after that, he would have 8 months and 17 days of remaining entitlement. This information was also included in a September 2011 letter to the Veteran. In February 2012, he was certified for the period of enrollment from January 17, 2012, to May 19, 2012, and informed, in pertinent part, that after that he would have 4 months and 14 days remaining. He was provided with this information regarding his remaining entitlement in April 2012 as well. In May 2012, an enrollment certificate was received from Fordham University, certifying the Veteran's enrollment for the periods from May 29, 2012, to June 28, 2012, and from July 2, 2012, to August 7, 2012. His program of education was noted to be a BA in Organizational Leadership. In a letter dated July 3, 2012, the Veteran was awarded benefits for the certified periods. He was also informed that his entitlement would exhaust on August 6, 2012, and that as of that date, he had 0 months and 0 days of remaining entitlement. In September 2012, the Veteran submitted a notice of disagreement with the July 2012 notice that his benefits had been reduced from a total of 18 months and 25 days to 16 months and 16 days. In September 2012, he was informed that his claim was denied because he had used 48 months of education benefits, which was the maximum amount allowed by law. Specifically, he was told that he had used 17 months and 5 days under the MGIB; 14 months and 9 days under the Vocational Rehabilitation (Chapter 31) program; and 16 months and 16 days under the Post-9/11 GI Bill. The Veteran continued his appeal, pointing out that for over 2 years, he had regularly received correspondence from VA leading him to believe that he had enough entitlement to provide for benefits through the fall semester of 2012, and that he planned his course load accordingly. He states that had he received adequate notice of the correct entitlement, he would have taken the 8 remaining credits in previous semesters, which he had not done in order to improve his grades. In statements and testimony, the Veteran argues that due to VA error, he had to pay approximately $14,000 out of pocket for the fall semester at Fordham University, in order to complete his degree. He states that he had budgeted his tuition, living stipend, and course load to exhaust his benefits after the fall 2012 semester which ended in December 2012. He stated that the 4 months and 14 days he was told remained after May 2012 would have covered through December 2012. Based on that belief, he had selected his courses and made arrangements regarding living and educational expenses. Because the notice of his reduced benefits was only received about a month before his classes began, and he had already registered for classes and signed a lease, he continued with his program, and contacted VA to figure what had happened. (The Veteran was notified that of his entitlement exhaustion on July 3, 2012, nearly 2 months before the beginning of the fall semester on August 29, 2012.) This caused considerable financial hardship. In general, 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. Chapter 33. 38 C.F.R. § 21.9550(a). Where an individual makes an irrevocable election to receive educational assistance under the provisions of 38 U.S.C. Chapter 33 (Post-9/11 GI Bill) instead of educational assistance under the provisions of Chapter 30, he/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. 38 C.F.R. § 21.9550(b)(1). VA calculated that the Veteran had used 17 months and 5 days of Chapter 30 entitlement (Montgomery GI Bill); thus, his remaining 18 months and 25 days of entitlement were relinquished in favor of receiving the equivalent entitlement to Chapter 33 (Post-9/11 GI Bill) benefits. However, the RO failed to take into consideration that the Veteran had also received 14 months and 19 days of benefits under Chapter 31, the Vocational Rehabilitation and Education (VR&E) program. The law expressly provides that the aggregate period for which any person may receive VA education benefits under two or more listed programs, including the MGIB (Chapter 30) and the Post 9/11 GI Bill (Chapter 33), may not exceed 48 months. 38 U.S.C.A. § 3695(a)(4) (West 2014); 38 C.F.R. § 21.4020(a)(4) (2015). Moreover, no person may receive assistance under Chapter 31 in combination with assistance under any of the other listed programs of education, including the MGIB and Post-9/11 GI Bill, in excess of 48 months (or the part-time equivalent thereof) unless the Secretary determines that additional months of benefits under chapter 31 of this title are necessary to accomplish the purposes of a rehabilitation program (as defined in section 3101(5) of this title) in the individual case. 38 U.S.C.A. § 3695(b); 38 C.F.R. § 21.4020(b). Because of this exception to the general limit of 36 months, although the Veteran had received 14 months and 9 days of VR&E benefits, with the additional 12 months provided by 38 C.F.R. § 21.4020, the error in the Veteran's determination of entitlement was only 2 months and 9 days, rather than the entire period of Chapter 31 training. The Veteran does not dispute having received these educational assistance benefits, and, thus, under the undisputed facts of this case, the Veteran received an aggregate of 48 months of VA education benefits under the MGIB, VR&E, and the Post-9/11 GI Bill programs. This is the maximum legally available to him. In this regard, although more than 48 months may be granted under Chapter 31, that is only if it is deemed necessary to accomplish the purposes of a rehabilitation program; here, at the time of the expiration of his entitlement, the Veteran was receiving benefits under Chapter 33, not Chapter 31. The Veteran is essentially arguing that he should be paid because he detrimentally relied on VA's statements to him of his remaining entitlement. Although the Veteran states that he incurred approximately $14,000 in expenses, including tuition, in order to complete his degree in December 2012, and that he had carefully budgeted his course load to end in December 2012, there is no documentation that he actually did complete that program of education. In this regard, in December 2012, two days after the end of the semester at Fordham, the Veteran applied for educational assistance under the Veterans Retraining Assistance Program (VRAP), for a new program of education at Brevard Community College. This was for an AA in Photography, which was to start January 14, 2013. He was provided a certificate of eligibility in January 2013 for that program, and told that he had 12 months of entitlement under the VRAP. In April 2013, he was provided a certificate of eligibility for an AAS program in Digital Photography at Phoenix College, beginning in May 2013. In addition, the Veteran filed a claim for Chapter 31 benefits in March 2016. VA treatment records dated in February 2012 and April 2012 also note that the Veteran stated that he was finishing his program at Fordham in August 2012; it was not until a June 22, 2012, treatment record that he stated that he expected to graduate by next December, and that he had two classes to take in the fall. The Veteran may very well have an explanation for these changes in his career goals. Nevertheless, even so, the VA error in initially calculating the Veteran's entitlement to Chapter 33 benefits, an error which continued until July 2012, does not entitle the Veteran to educational assistance for the period beyond the statutory maximum period of entitlement. Such benefits must be authorized by statute, notwithstanding incomplete or even erroneous information provided by others, including Government employees, and regardless of extenuating circumstances or claims of fairness. See, e.g., Office of Personnel Management v. Richmond, 496 U.S. 414, 426, 110 L. Ed. 2d 387, 110 S. Ct. 2465 (1990); Davenport v. Principi, 16 Vet. App. 522 (2002); see also McTighe v. Brown, 7 Vet. App. 29, 30 (1994) (holding that erroneous advice given by a government employee cannot be used to estop the government from denying benefits). In other words, incomplete or erroneous information provided by government employees cannot form the basis for a grant of benefits to which an individual is not legally entitled. The error was caught before the payments were made, and sole administrative error is only a justification for the retention of benefits paid. The Veteran's arguments are essentially equitable in nature. The Secretary of VA, but not the Board, has discretionary power to provide equitable relief, and the Veteran is free to apply to the Secretary and request that he exercise his discretionary authority to grant his claim on an equitable basis. See 38 U.S.C.A. § 503 (West 2014); 38 C.F.R. § 2.7 (2009); see also Darrow v. Derwinski, 2 Vet. App. 303, 304 -06 (1992); Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey, supra. Authority to award equitable relief under 38 U.S.C.A. § 503(a) (West 2014) is committed to the sole discretion of the Secretary, and that the Board is without jurisdiction to consider matters which are solely committed to the Secretary's exercise of that discretion. See McCay v. Brown, 9 Vet. App. 183, 189 (1996). In sum, notwithstanding any extenuating circumstances or claims of fairness, the Board must apply the relevant law. Congress did not enact any exceptions to the above-discussed legal provisions which would permit a grant of the requested benefit, and in this case, there is no legal basis on which the Veteran's claim can be granted. As the law and not the evidence is dispositive in this case, the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). (CONTINUED ON NEXT PAGE) ORDER Entitlement to additional VA educational assistance benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill), is denied. ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs