Citation Nr: 18140271 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 15-11 571 DATE: October 2, 2018 ORDER Entitlement to education benefits under the provisions of Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) is denied. FINDING OF FACT The record does not reflect the Veteran had qualifying active military service after September 10, 2011. CONCLUSION OF LAW The criteria for entitlement to education benefits under the provisions of Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) have not been met. 38 U.S.C. § 3301; 38 C.F.R. § 21.9520. REASONS AND BASES FOR FINDING AND CONCLUSION The record reflects the Veteran served on active duty in the United States Navy from August 1979 to August 1983. Further, the record indicates he had additional service in the Reserves through August 1986. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a determination by an Education Center located at a Department of Veterans Affairs (VA) Regional Office (RO). As an additional matter, the Board notes the Veteran also applied for benefits under the Veterans Retraining Assistance Program (VRAP), which was a component of the VOW to Hire Heroes Act of 2011, passed by Congress, signed into law by the President, and is set forth as a note in 38 U.S.C. § 4100. See Pub. L. 112-56, Title II, § 211, 125 Stat. 713. Although this matter was discussed in the Statement of the Case (SOC), it is noted the Veteran was approved for this education benefit. Granted, the overall VRAP program ended on March 31, 2014, and the Veteran was informed he was not entitled to receive such benefits after that date. Nevertheless, the present appeal arises from the denial of his application for Chapter 33 (Post-9/11 GI Bill) education benefits, and it does not appear the Veteran has contended he is entitled to VRAP benefits after March 31, 2014. Therefore, the Board finds that this issue is not presently before it for adjudication. See 38 C.F.R. §§ 20.200, 20.201. 1. Entitlement to education benefits under United States Code, Title 38, Chapter 33 (Post-9/11 GI Bill). The governing law specifies that an individual may establish eligibility for educational assistance under 38 U.S.C. Chapter 33 based on active duty service after September 10, 2001, if he or she serves a minimum of 90 aggregate days excluding entry level and skill training, and, after completion of such service, he or she: (1) continues on active duty; (2) is discharged from service with an honorable discharge; (3) is 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) is released from service characterized as honorable for further service in a reserve component; or (5) is discharged or released from service for - (i) a medical condition that preexisted such service and is not determined to be service-connected; (ii) hardship, as determined by the Secretary of the military department concerned; or (iii) 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. See 38 U.S.C. § 3301; 38 C.F.R. § 21.9520(a). Under paragraph (b), a veteran is also eligible for benefits under 38 U.S.C. Chapter 33, if he or she serves a minimum of 30 continuous days and, after completion of such service, is discharged under other than dishonorable conditions due to a service-connected disability. See 38 C.F.R. § 21.9520(b). In this case, the record does not reflect the Veteran had qualifying active military service after September 10, 2011. As already noted, the record reflects he had active service from August 1979 to August 1983, as well as additional Reserve service through August 1986. Consequently, he does not have the requisite service to receive education benefits under Chapter 33 (Post-9/11 GI Bill). The Veteran has submitted various contentions in support of his appeal, and has emphasized his need for education in order to be able to compete in the job market. However, he has not disputed the length of his active military service subsequent to September 10, 2001. Consequently, his contentions essentially constitute a theory of equitable relief. Although the Board is sympathetic to the claim and his efforts to pursue his education goals, it is without authority to grant the claim on an equitable basis and instead is constrained to follow the specific provisions of law. See 38 U.S.C. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Here, the law specifically requires a certain period of active service subsequent to September 10, 2001, in order to have basic eligibility for Post-9/11 education benefits; and the Veteran does not have the requisite service. For these reasons, the Board must find the Veteran has no legal entitlement to Chapter 33 (Post-9/11 GI Bill) education benefits, and his appeal must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (Where the law and not the evidence is dispositive of the issue before the Board, the claim must be denied because of the absence of legal merit or the lack of entitlement under the law.). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD John Kitlas, Counsel