Citation Nr: 1756965 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 11-12 328 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California 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). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. McCabe, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from January 1996 to January 2016. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The case is currently under the jurisdiction of the VA RO in San Diego, California. The case was remanded by the Board in August 2014 and again in February 2017. It has since returned to the Board. As noted in the prior February 2017 Board remand, the Veteran was scheduled for a video conference hearing at the San Diego RO in May 2016. However, he failed to report for this hearing and provided no explanation for his failure to report. Therefore, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2017). FINDING OF FACT The Veteran timely appealed a decision informing him that he was entitled to only 18 months and 4 days of Chapter 33 benefits, was not provided any separate notice prior to the decision informing him of the consequences of the election or of its irrevocability, and was not provided an opportunity to rescind the election once the decision had been made. 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 not been met. 38 U.S.C. §§ 3301-24 (2012); 38 C.F.R. § 21.9520 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION As noted above, the Veteran served on active duty from January 1996 to January 2016. He was previously in receipt of educational assistance benefits under 38 U.S.C. Chapter 30, known as the Montgomery GI Bill (MGIB) program. According to the RO, "[o]n February 24, 2010, VA received claimant's Veterans On-line Application (VONAPP) for Post 9/11 GI Bill." See May 2017 Supplemental Statement of the Case (SSOC). On that application, the Veteran apparently indicated that he was applying for "Chapter 33 [educational benefits] in lieu of Chapter 30 - Effective: 3/1/2010." See id.; see also Application for VA Education Benefits (VA Form 22-1990). At the time of his application, the Veteran had 18 months and four days of Chapter 30 entitlement remaining. See March 2010 Master Education Record Sheet ("EDUDHARD_FET_Master_Record"). The following month, VA issued a Certificate of Eligibility for 18 months and 4 days of benefits under the Post-9/11 GI Bill at the 100 percent level, based on his qualifying service and his remaining benefits under Chapter 30. See Certificate of Eligibility dated March 4, 2010. The Veteran disagreed with this determination, asserting that he transitioned from the Montgomery GI Bill (MGIB) educational assistance program under 38 U.S.C. Chapter 30 to the Post-9/11 GI Bill in order to take advantage of the extended eligibility period provided by that program. See Notice of Disagreement received January 7, 2011. He maintained that he was informed that transitioning would afford him another year of educational benefits. See id.; Letter dated February 4, 2011, accompanying VA Form 9 (Substantive Appeal) (asserting that he was not adequately informed of the consequences of transitioning). However, he later learned that his election would not provide 12 months of educational benefits, but rather only his remaining 18 months and 4 days. See id. Accordingly, he seeks to rescind his election to relinquish his MGIB benefits in lieu of his Post-9/11 GI Bill benefits. In a February 2011 Statement of the Case (SOC), the RO denied the Veteran's request to revoke his election, finding he had irrevocably elected to receive benefits under the Post-9/11 GI Bill, in lieu of the MGIB. See 38 C.F.R. § 21.9520(c)(1) (an otherwise qualifying individual may establish eligibility for educational assistance under Chapter 33, if he or she makes an irrevocable election to receive benefits under that Chapter by relinquishing eligibility under Chapter 30). In this regard, aside from any differences in the amount of educational assistance payable under the two programs, the aggregate period for which any person may receive assistance under two or more of the 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) (2017). Each of these individual programs of educational assistance, however, only permits 36 months of training. See 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. chapter 33."). 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. If the Veteran converts his MGIB entitlement to Post-9/11 GI Bill entitlement, the Veteran receives only the amount of time remaining on the MGIB entitlement. If, however, he continues to use MGIB entitlement until it is exhausted, and then applies for Post-9/11 GI Bill benefits, it appears that he will receive an additional 12 months under the Post-9/11 GI Bill. 38 U.S.C. § 3322, entitled "Bar to duplication of educational assistance benefits," reads as follows: "An individual entitled to educational assistance under this chapter who is also eligible for educational assistance under chapter 30, . . . , may not receive assistance under two or more such programs concurrently, but shall elect (in such form and manner as the Secretary may prescribe) under which chapter or provisions to receive educational assistance." Notably, the purpose of requiring election was to avoid duplication of educational assistance, and the statute itself does not require that the election be irrevocable. This was added by the regulation, which provides that an otherwise qualifying individual with MGIB entitlement may establish eligibility for educational assistance under the Post-9/11 GI Bill based on active duty service after September 10, 2001, if he makes an irrevocable election to receive benefits under the Post-9/11 GI Bill by relinquishing eligibility under the MGIB. 38 C.F.R. § 21.9520(c)(1). The question before the Board, then, is whether the Veteran made an irrevocable election for Chapter 33 benefits in lieu of Chapter 30 benefits, and at what point does such an election become irrevocable. Does the point of no return occur upon mailing or submission of the application, upon issuance of the decision and Certificate of Eligibility (which would almost amount to the same unless a claimant had an opportunity to revoke the application prior to the issuance of the decision), upon transference of Chapter 33 funds, or at some other stage? The law does not answer this question. Rather, as noted, it simply provides that an individual "may make an irrevocable election to receive" Chapter 33 benefits by, in relevant part, properly completing VA Form 22-1990 (emphasis added). 38 C.F.R. § 21.9520. The discretionary word "may" likely applies to the choice of the form of election, i.e. by VA Form 22-1990 or other specified means, such as a written statement with certain required content, rather than the irrevocableness of the election itself once properly made. See id. At the same time, the regulation does not state that once the form or statement is submitted, the election becomes immediately irrevocable, with no means of retraction at that stage. Here, according to the RO, the Veteran submitted his application for Chapter 33 benefits on February 24, 2010. Eight days later, the RO notified him of his Chapter 33 entitlement amount. The Veteran was not given an opportunity to take any measures to revoke the election once that decision was issued, other than to appeal it. He did appeal it, but the RO found that this was not sufficient. Moreover, the Veteran has provided very credible evidence that he had no idea he was forfeiting a possible twelve months' worth of Chapter 33 benefits, and that it was his specific intention to receive such benefits. See Notice of Disagreement received January 7, 2011; Letter dated February 4, 2011, accompanying VA Form 9 (Substantive Appeal). Importantly, as noted, regulations reflect that an individual may make an irrevocable election to receive benefits under Chapter 33 by "properly completing VA Form 22-1990." See 38 C.F.R. § 21.9520(c)(2). The Veteran's February 2010 application was on an electronic version of VA Form 22-1990, and, given the Veteran's credible assertions concerning his clear intention to manage his benefits in such a way as to avail himself of the additional 12 months of educational benefits available under the Post-9/11 GI Bill, an analysis of whether such form was "properly completed" is central to the current claim. In contrast to the electronic version, the official version of the VA Form 22-1990, as available in a paper copy, and on the VA web site for forms, contains a section in which a veteran must explicitly acknowledge that "[i]f electing chapter 33 in lieu of chapter 30, [his] 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 [his] election; and also that his "election is irrevocable and may not be changed." See VA Form 21-1990, p. 1 (Dec. 2016) (emphasis in original). A Veteran must enter the date, and indicate via a checkmark that he understands that, by electing Chapter 33 benefits, it is in lieu of entitlement to Chapter 30 benefits and, again, that his election is irrevocable. In this case, there is no indication in the record currently before the Board that the On-line Application completed by the Veteran contained any such language. Significantly, the Board remanded this claim on two occasions with the instruction that the Agency of Original Jurisdiction (AOJ) provide the evidence upon which it relied "in determining that the [Veteran] had made an irrevocable election to receive educational benefits under the Post-9/11 GI Bill Ch. 33 program in lieu of benefits under the MGIB Ch. 30 program." See August 2014 Board Decision (emphasis added); February 2017 Board Decision. The RO responded in the May 2017 SSOC that the evidence consisted of "claimant's application for Post-9/11 GI Bill on which he selected to relinquish MGIB," as well as VA regulations which "state[] that the election for Post-9/11 GI Bill is considered irrevocable." Despite this, the body of the form itself, as reflected in the copy of the Veteran's application that has been associated with the claims file, does not require any acknowledgement by a veteran either that he understands that the election is irrevocable or that he has been informed of the consequences of the election, such as is contained in the official version. Moreover, even if such an acknowledgement were required, the completed form as associated with the claims file does not contain any form of signature or other indication from the Veteran, including an e-signature. Additionally, the date field was left blank. The Board notes that, in addition to the submission of a properly completed VA Form 22-1990, there are two other methods for effecting an irrevocable election to receive benefits under Chapter 33: (1) by submitting a transfer-of-entitlement designation under this chapter to the Department of Defense (DoD); or (2) by submitting a written statement that includes the Veteran's identifying information, an election to receive benefits under chapter 33 in lieu of benefits under the MGIB, the desired effective date, and "[a]n 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). There is no evidence or suggestion that the Veteran submitted a transfer-of-entitlement designation to the DoD. As to the final method, a written statement, this, too, requires that the Veteran explicitly acknowledge that the election is irrevocable. This is a separate requirement, in addition to the requirement that the Veteran elect to receive Post-9/11 GI Bill benefits in lieu of MGIB benefits. Significantly, given the explicit acknowledgement required in the official application form and considering the requirement that the Veteran acknowledge the irrevocability of the election in the alternative written statement submission, the regulations make clear that an informed election is paramount. Accordingly, for an application to be "properly completed," there must be sufficient information to convey that the Veteran has acknowledged that the election is irrevocable. Particularly where the consequences of filing an "irrevocable" election are potentially so significant, strict compliance with the irrevocable election requirements is paramount. And here, the electronically filed version of VA Form 22-1990 as documented in the Veteran's claims file does not contain such an acknowledgement. Absent an actual showing of the content of any notification to the Veteran that his election was irrevocable, the Board is unwilling to conclude his decision was informed. Accordingly, considering the lack of evidence that the Veteran was informed of the consequences of the election or the irrevocability of his application, in light of the fact that the Veteran was not given an opportunity to rescind the application and did not otherwise have an opportunity to rescind the election once the decision had been made, and resolving all reasonable doubt in the Veteran's favor, the Board finds that a valid, irrevocable election of Post-9/11 GI Bill (Chapter 33) education benefits was not made. 38 C.F.R. § 3.102 (2017). See also 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER The Veteran did not made an irrevocable election for education benefits under the Post-9/11 GI Bill program (Chapter 33); the appeal is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs