Citation Nr: 18147471 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 16-31 983 DATE: November 6, 2018 ORDER The claim of entitlement to additional Department of Veterans Affairs (VA) educational assistance benefits more than 0 days as of January 22, 2016, under Chapter 33, Title 38, United States Code (known as the Post-9/11 GI Bill) is denied. FINDING OF FACT 1. For the period from January 4, 2016, to January 22, 2016, the Veteran was enrolled in network cabling training program at a non-college degree granting institution, tuition for such was paid for by VA in the amount of $5,800.00. 2. Prior to the start of his January 2016 program of study, the Veteran had transferred 34 months of Chapter 33 benefits to a dependent daughter, of which she had used 33 months and 30 days. CONCLUSION OF LAW As of January 22, 2016, the Veteran has no legal entitlement to any additional VA educational assistance benefits under the provisions of Chapter 33. 38 U.S.C. § 3313; 38 C.F.R. § 21.9550. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1988 to December 2015. This appeal to the Board of Veterans’ Appeals (Board) arose from January and February 2016 determinations of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that, as of January 26, 2016, the Veteran had exhausted his entitlement to Chapter 33 educational assistance benefits. The Veteran disagreed, and this appeal ensued. Also, this appeal has been advanced on the Board's docket. See 38 U.S.C. § 7107 (a)(2) and 38 C.F.R. § 20.900(c). A review of the record shows that in November 2015, the Veteran filed an application to receive benefits under the Post-9/11 GI Bill for training which was indicated to begin in January 2016. The Veteran therein stated his belief that he had remaining 2 months of 9 days of entitlement remaining, noting that he had made previous transfers of Post-9/11 GI Bill educational assistance benefits to his daughter. On January 4, 2016, the National Communications Training Centers in San Marcos, California, certified that the Veteran was enrolled in a network cabling training program, which program consisted of 35 clock hours during the period from January 4, 2016, to January 22, 2016. On January 8, 2016, the RO notified the Veteran that he had been awarded VA educational assistance benefits under the Post-9/11 GI Bill. Specifically, the RO noted that it had issued a tuition and fees payment in the amount of $5,800.00 to National Communications Training Centers, which payment was to cover the Veteran’s program of training running from January 4, 2016, to January 22, 2016. The RO then notified the Veteran that as of January 22, 2016, he would have 0 months and 0 days of eligibility remaining. On January 23, 2016, the Veteran requested that any remaining entitlement to Chapter 33 educational assistance benefits belonging to his daughter under the Transfer of Entitlement provisions be revoked and returned to him. On February 2, 2016, the RO issued a “Certificate of Eligibility,” certifying that the Veteran had been approved for a program of education or training under the Post-9/11 GI Bill. In that letter, it was noted that the Veteran then had 0 months and 0 days of eligibility remaining. In correspondence dated that same day, the Veteran again reported that he revoked his daughters remaining 9 days of entitlement, and requested that that entitlement be returned to him. It was later verified that of the 34 months of Chapter 33 educational assistance benefits previously transferred to her, the Veteran’s daughter had used 33 months and 10 days. In a letter dated February 11, 2016, the RO explained to the Veteran that although the Veteran’s daughter had 10 days of entitlement remaining, he had already used 2 months and 10 days of his own entitlement for the program paid for running from January 4, 2016, to January 22, 2016, which had exhausted his entitlement to Chapter 33 educational assistance benefits. Thus, there remained no eligibility to receive back any unused entitlement previously transferred to his daughter. Notably, under governing law, an eligible individual is entitled to a maximum of 36 months of educational assistance (or its equivalent in part-time educational assistance) under the Post-9/11 GI Bill. See 38 C.F.R. § 21.9550. Specific to certificate and other non-college degree programs, of which the Veteran’s program of study National Communications Training Centers was one, the law provides that the amounts paid for pursuit of such program of education will be charged against entitlement in the following way: one month for each of (i) the amount so paid, divided by (ii) subject to subparagraph (B), the amount equal to one-twelfth of the amount applicable in the academic year in which the payment is made under paragraph (3)(A)(i)(II). 38 U.S.C. § 3313(g)(5). In accordance with 38 U.S.C. § 3313(3)(A)(i)(II), the total amount of educational assistance payable for programs of study taken at non-college degree granting institutions, for the academic year beginning on August 2016, was the actual net costs for in-state tuition and fees, not to exceed $21,970.46. https://www.benefits.va.gov/GIBILL/resources/benefits_resources/rates/ch33/ch33rates080116.asp. Here, the amount paid for the Veteran’s network cabling technician program at National Communications Training Centers was $5,800.00. Although the program lasted only from January 4, 2016, to January 22, 2016, the charge against entitlement based on the amount paid by VA equated to more than three months of entitlement. 38 U.S.C. § 3313(g)(5). Further, it is undisputed that the Veteran had, prior to enrollment in the network cabling technician program at National Communications Training Centers in January 2016, transferred 34 months of entitlement to his daughter. Thus, he was left with only two months of entitlement to Chapter 33 educational assistance benefits for his own use. Even factoring in the additional 10 days of entitlement that were not used by his daughter, the Veteran was afforded entitlement to Chapter 33 educational assistance benefits in excess of what he had remaining at the beginning of the January 2016 program. (Parenthetically, the Board notes that the Veteran was granted an entitlement extension because his exhaustion date was more than half-way through his term; in such cases, the law allows veterans to receive full benefits in order to complete the term.) Accordingly, because the Veteran had exhausted his 36 months of entitlement to VA educational assistance benefits under the Post-9/11 GI Bill as of January 22, 2016, he is not entitled to any additional Chapter 33 educational assistance benefits as a matter of law. The Board understands that the Veteran may believe he is entitled to additional educational assistance benefits under the provisions of the Post-9/11 GI Bill. However, the Board is bound by the laws and regulations that apply to Veterans’ claims. 38 U.S.C. § 7104(c); 38 C.F.R. §§ 19.5, 20.101(a). In this case, those laws and regulations indicate that there is no legal basis upon which the Veteran’s claim can be granted. This is so because the Veteran is limited to no more than 36 months of total educational assistance and additional benefits under the Post-9/11 GI Bill. As the law and not the evidence is dispositive in this case, the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Neilson, Counsel