Citation Nr: 1804917 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-20 304 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to educational assistance benefits under the provisions of Chapter 33, Title 38, United States Code (Post-9/11 GI Bill Program). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel INTRODUCTION The Veteran had active service from February 1975 to August 1980, and from October 2010 to September 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified at a videoconference hearing held in September 2017 before the undersigned veteran law judge (VLJ). A transcript of the hearing is of record. FINDING OF FACT The Veteran has already received 45 months of education benefits under the Chapter 34 Vietnam Era Veterans Educational Assistance Program and three months under the Chapter 30 (Montgomery GI Bill) program, for a total of 48 months. CONCLUSION OF LAW The criteria for educational assistance benefits under the Post 9/11 GI Bill, pursuant to Chapter 33, Title 38, United States Code, have not been met. 38 U.S.C. §§ 3011, 3695 (2012); 38 C.F.R. §§ 21.4020, 21.9500-21.9770 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), which implement the Veterans Claims Assistance Act of 2000 (VCAA). The Board also notes, however, that the United States Court of Appeals for Veterans Claims (Court) has held that VCAA notification procedures do not apply in cases where the applicable chapter of Title 38, United States Code contains its own notice provisions. See Barger v. Principi, 16 Vet. App. 132, 138 (2002) (VCAA notice was not required in case involving a waiver request). 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. 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(d)." In this case, the record does not reflect the Veteran's formal claim for educational assistance was incomplete. Rather, as detailed below, the resolution of this case depends upon the extent to which the Veteran has already used other education benefits, and whether he is entitled to additional educational benefits. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice or lack thereof. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Moreover, there does not appear to be any additional development that would result in the benefit sought on appeal. Therefore, the Board finds that no further action is necessary under the statutory and regulatory duties to notify and assist. The Board adds that general due process considerations have been satisfied. See 38 C.F.R. § 3.103. Governing Law and Regulations The provisions of Chapter 33, Title 38, of the United States Code were established by the Post-9/11 Veterans Educational Assistance Act of 2008. See Title V of the Supplemental Appropriations Act of 2008, Pub. L. 110-252, which became law on June 30, 2008. The Appropriations Act amended Part III of Title 38, United States Code to include a new Chapter 33. The law has been referred to as the Post-9/11 GI Bill, the 21st Century G.I. Bill of Rights and the Webb G.I. Bill. The original Post-9/11 GI Bill's provisions went into effect on August 1, 2009; changes to the law have been put into place since that time but are not pertinent to the matter on appeal in this case. The Post 9/11 Veterans Educational Assistance Act of 2008 represented a new program of education benefits designed for Veterans who served on active duty after September 11, 2001. The provisions of the Act were codified at 38 U.S.C. §§ 3301-3324 with the implementing regulations found at 38 C.F.R. §§ 21.9500 -21.9770. VA law provides a limit on training under two or more programs. The aggregate period for which any person may receive assistance under two or more of the following laws may not exceed 48 months (or the part-time equivalent): (1) Part VII or VIII, Veterans Regulations numbered 1(a), as amended; (2) Title II of the Veterans' Readjustment Assistance Act of 1952; (3) The War Orphans' Educational Assistance Act of 1956; (4) 38 U.S.C. chapters 30, 32, 33, 34, 35, and 36; (5) 10 U.S.C. chapters 106a, 1606, and 1607; (6) Section 903 of the Department of Defense Authorization Act, 1981; (7) The Hostage Relief Act of 1980; and (8) The Omnibus Diplomatic Security and Antiterrorism Act of 1986. 38 U.S.C. § 3695(a); 38 C.F.R. § 21.4020(a). Analysis In October 2013, the Veteran submitted an application for Chapter 33 Post-9/11 GI Bill education benefits, and explicitly elected to forego his entitlement to any benefits under the Chapter 30 Montgomery GI Bill Educational Assistance Program (MGIB). That same month, a VA education officer in Muskogee issued a denial letter that informed the Veteran that he had already exhausted his 48 months of education benefits. The weight of the evidence shows that the Veteran has already received 45 months of education benefits under the Chapter 34 Vietnam Era Veterans Educational Assistance Program (VEAP) and 3 months of education benefits under the MGIB, for a total of 48 months of education benefits. As stated, while an individual may be entitled to benefits under various education programs, a person may not receive more than 48 months of educational assistance under two or more educational programs. 38 C.F.R. § 21.4020. The Veteran was notified that he was not entitled to any additional days of education benefits after the MGIB benefits expired on several occasions, most prominently in the June 1989 letter notifying him of the initial award of the MGIB benefits. It is clear that the Veteran is not eligible for any additional days of education benefits under the Post-9/11 GI Bill because he had already received the maximum 48 months of educational assistance in total prior to submitting his application. The Board has considered the Veteran's contention that he does not remember using the three months of MGIB benefits and should be granted an additional three months of benefits under either the MGIB or the Post-9/11 GI Bill. The Veteran's argument, which essentially constitutes a theory of entitlement to equitable relief, is untenable, as the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). There is no basis in law or fact whereby the Veteran may be granted more than 48 months of combined education benefits under Chapter 33. The law in this case, therefore, and not the evidence, is dispositive of the appeal. Sabonis v. Brown, 6 Vet. App. 426 (1994). As such, entitlement to additional educational assistance under Chapter 33, 38 United States Code, is not established. ORDER Entitlement to educational assistance benefits under Chapter 33, Title 38, United States Code (Post 9/11 GI Bill) is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs