Citation Nr: 18144502 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 15-10 346A DATE: October 24, 2018 ORDER Entitlement to additional educational assistance benefits in excess of 21 months is denied. FINDING OF FACT The Veteran has received 27 months of educational assistance benefits under the Post-Vietnam Era Veterans’ Educational Assistance Program (VEAP). CONCLUSION OF LAW The criteria for entitlement to additional educational assistance benefits in excess of 21 months have not been met. 38 U.S.C. §§ 3222, 3319, 3695; 38 C.F.R. §§ 21.4020, 21.5022, 21.5052, 21.5058, 21.9550. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1984 to August 1988; January 1997 to February 2005; July 2006 to October 2006; and November 2014 to December 2015. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2017, the Veteran testified before the undersigned at a Board hearing in Washington, D.C. A transcript of that hearing has been associated with the virtual file and reviewed. Entitlement to educational assistance benefits in excess of 21 months. The Veteran contends that he is entitled to educational assistance benefits in excess of 21 months. In the instant case, the evidence of record shows that the Veteran utilized educational assistance benefits made available to him under VEAP, Chapter 32, Title 38, United States Code. The Veteran also became entitled to Post-9/11 GI Bill educational assistance benefits, under Chapter 33, Title 38, United States Code, which benefits he sought to transfer to his daughter. The Agency of Original Jurisdiction (AOJ) determined that the Veteran only had 21 months of benefits under the Post-9/11 GI Bill to transfer because he had already utilized 27 months of benefits under VEAP. It is with that determination that the Veteran disagrees. Initially, the Board notes that VA law provides a limit on training under two or more programs. Specifically, 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). In summary, the Veteran is not entitled to receive more than 48 months (or the part-time equivalent) of educational assistance benefits. Under Chapter 32, Title 38, United States Code, all veterans who entered active duty after January 1, 1977, and before July 1, 1985, are eligible to participate in VEAP by enrolling during their period of active service. One who enrolls and participates in the program agrees to have a monthly deduction made from his or her military pay of not less than $25 and no more than $100. Each monthly contribution made by a participant under subsection (a) entitles the participant to matching funds from the Department of Defense at the rate of two dollars for each dollar contributed by the participant. The maximum total contribution allowed per person is $2,700, or 27 months of educational assistance benefits. 38 U.S.C. § 3222(a), (b), (e). The facts are not in dispute. The Veteran contributed the maximum $2,700 during his first period of active duty under VEAP. In February 1987, the Veteran submitted an Application for Refund of Educational Contributions, claiming personal hardship, and he was refunded his $2,700 contribution. In June 1988, the Veteran contributed $2,700 in the form of a lump sum payment towards VEAP. In August 1988, prior to discharge, the Veteran applied for his educational assistance benefits under VEAP, which he received in the amount of $8,100 from August 1988 to May 1991 while enrolled full-time at Biola University. The Veteran argues that he was not entitled to receive the VEAP benefits he utilized and therefore should be entitled to repay VA $5,400 (the difference between his contribution to VEAP and the amount of the benefits received under VEAP) and not have the 27 months of VEAP benefits deducted from the maximum 48 months of educational assistance benefits permitted. In support, the Veteran points to the February 1987 Application for Refund of Education Contributions, which states: I request that I be disenrolled from the POST-VIETNAM ERA VETERANS EDUCATIONAL ASSISTANCE PROGRAM. I further request that all funds I have contributed to this program be refunded to me. I realize that by disenrollment, I am forfeiting my entitlement to receive educational benefits under this program. If I am on active duty, I may again enroll in this program by establishing a payroll deduction and thereby reestablish entitlement to educational benefits. However, I will not be able to regain the amount of entitlement I have so far accrued upon refund of these funds. Specifically, the Veteran contends that because he requested to re-enroll while on active duty, he was required to do so by establishing a payroll deduction. The Veteran argues that because he re-enrolled by making a lump-sum payment, he was not entitled to the VEAP benefits he received. Accordingly, he contends, that he should be entitled to reimburse VA for the amounts received under VEAP and not have the 27 months of benefits be deducted from the maximum 48 months of aggregate educational assistance benefits he is entitled to. The Board does not find the Veteran’s argument persuasive. First, the Board notes that the language of the Application for Refund of Education Contributions states that if he is on active duty, he may again enroll in this program by establishing a payroll deduction (emphasis added). The Board does not interpret this language to preclude reenrollment in the program through use of a lump-sum payment. In fact, a participant shall be permitted, while serving on active duty, to make a lump-sum contribution to the fund, which shall be in addition to or in lieu of monthly deductions made from such participant’s military pay. 38 U.S.C. § 3222(d); 38 C.F.R. § 21.5052(f); see also 38 C.F.R. § 21.5058(c)(2) (“If a person does reenroll, he or she may ‘repurchase’ entitlement by tendering previously refunded contributions which he or she received upon disenrollment.”). Second, the Veteran actually received and utilized his VEAP educational assistance benefits. The Board finds that the Veteran is equitably estopped from now claiming that he was not entitled to the VEAP benefits he received and utilized to attend school. See InterGen N.V. v. Grina, 344 F.3d 134, 145 (1st Cir. 2003) (“[T]he doctrine of equitable estoppel precludes a party from enjoying rights and benefits under a contract while at the same time avoiding its burdens and obligations.”); Hughes Masonry Co. v. Greater Clark County School Bldg. Corp., 659 F.2d 836, 839 (7th Cir. 1981) (“In short, [the plaintiff] cannot have it both ways. [He] cannot rely on the contract when it works to [his] advantage, and repudiate it when it works to [his] disadvantage.”) (citation omitted). In other words, the Veteran is not entitled to enjoy the benefit of VEAP educational benefits and then claim that he was never eligible to receive them more than 20 years later. As the Board finds that the Veteran is not entitled to restoration of the 27 months of VEAP educational assistance benefits he utilized to attend school, it follows that he is not entitled to additional educational assistance benefits in excess of 21 months under the Post-9/11 GI Bill. To award the Veteran any additional months of eligibility would result in more than 48 months of combined entitlement, which is precluded. See 38 C.F.R. § 21.4020. The Board is bound by the laws and regulations applicable to the benefit sought and has no discretion in cases such as this. See 38 C.F.R. § 19.5 (“In the consideration of appeals, the Board is bound by applicable statutes, regulations of the Department of Veterans Affairs, and precedent opinions of the General Counsel of the Department of Veterans Affairs.”). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel