Citation Nr: 1746937	
Decision Date: 10/20/17    Archive Date: 10/31/17

DOCKET NO.  13-10 861	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUE

Whether the calculated amount of entitlement to Department of Veterans Affairs (VA) 38 U.S.C. A., Chapter 33 (Post-9/11 G.I. Bill) educational benefits used for attendance at the National Laser Institute for the period from August 13, 2012, to August 28, 2012, was proper.  


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

J. T. Hutcheson, Counsel


INTRODUCTION

The Veteran had active service from January 2002 to May 2002, from February 2003 to June 2004, and from March 2006 to April 2008.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 decision of the Buffalo, New York, Regional Office of the VA which awarded 38 U.S.C.A., Chapter 33 (Post-9/11 G.I. Bill) educational benefits in the amount of $8,645.00 for the Veteran's attendance at the National Laser Institute for the period from August 13, 2012, to August 28, 2012.  VA calculated that the Veteran had used 5 months and 22 days of entitlement for the enrollment at the National Laser Institute.  The Veteran appeared at an April 2017 hearing before the undersigned Veterans Law Judge at the New York, New York, Regional Office (RO).  A hearing transcript is of record.  


FINDING OF FACT

In a June 2017 Informal Hearing Presentation, the accredited representative withdrew the appeal of the issue presently before the Board.  


CONCLUSION OF LAW

The issue on appeal has been withdrawn and no allegation of error of fact or law remains.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.204 (2017).  



REASONS AND BASES FOR FINDING AND CONCLUSION

In the June 2017 Informal Hearing Presentation, the accredited representative advanced that the issue on appeal was specifically not the "amount of entitlement charged for attendance at National Laser Institute."  The representative clarified that the Veteran was instead seeking a determination as to "whether VA failed in its duty to assist the Veteran in the use of earned G.I. Bill benefits" as "she never would have attended the National Laser Institute if VA education counselors had fulfilled their duty to assist by properly explaining the impact of such enrollment on her G.I Bill benefits."  The Board finds that the accredited representative has expressly stated that the Veteran was not contesting the issue of whether the calculated amount of entitlement to 38 U.S.C. A., Chapter 33 (Post-9/11 G.I. Bill) educational benefits used for attendance at the National Laser Institute for the period from August 13, 2012, to August 28, 2012, was proper.  That statement clearly indicates a desire to withdraw the appeal of the issue presently before the Board.  

An appellant or accredited representative may withdraw a substantive appeal in writing at any time prior to the Board's promulgation of a decision.  38 C.F.R. § 20.204 (2017).  The Board finds that the Veteran has effectively withdrawn the appeal from the determination that the calculated amount of entitlement to VA 38 U.S.C. A., Chapter 33 (Post-9/11 G.I. Bill) educational benefits used for attendance at the National Laser Institute for the period from August 13, 2012, to August 28, 2012, was proper.  Therefore, the Board concludes that no allegation of fact or law remains as to that issue and the appeal must be dismissed.  38 U.S.C.A. § 7105 (West 2014).  

The accredited representative argues that "it's against equity and good conscience for the VA not to make an adjustment to either pay the full amount of the outstanding tuition fees incurred as a result of misinformation VA provided the claimant."  The representative argues that the benefits used at National Labor Institute should be restored because the Veteran was not appropriately advised of the amount of benefits that would be used in attending that program.  While the Board is sympathetic to the Veteran's claim and particular circumstances, the Board is bound by the law and is without authority to grant benefits on the basis of equity.  38 U.S.C.A. §§ 503, 7104 (West 2014); Harvey v. Brown, 6 Vet. App. 416 (1994).  VA is constrained by the applicable law and regulations as written.  38 U.S.C.A. § 7104 (c) (West 2014).  No plea for equity, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress.  Smith v. Derwinski, 2 Vet. App. 429 (1992).  If the Veteran has a claim for benefits to be granted or restored in equity, that claim must be made directly to the Secretary of VA.  38 U.S.C.A. § 503 (West 2014).


ORDER

The issue on appeal has been withdrawn and is dismissed.  



____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs