Citation Nr: 18151574 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 15-12 000 DATE: November 19, 2018 ORDER Entitlement to additional VA educational assistance benefits in excess of 12 months and 2 days under the Post-9/11 GI Bill (Chapter 33) is denied. FINDINGS OF FACT 1. The Veteran has already received 23 months and 28 days of educational benefits under the Montgomery GI Bill (Chapter 30). 2. The Veteran’s total educational benefit entitlement of 36 months less the already received Chapter 30 benefits leaves 12 months and 2 days of full-time benefits remaining for use under Chapter 33 for the purpose of transfer to a dependent. CONCLUSION OF LAW The criteria for entitlement to additional VA educational assistance benefits beyond the remaining 12 months and 2 days of full-time benefits have not been met. 38 U.S.C. §§ 3011, 3311, 3319 (2012); 38 C.F.R. § 21.9550, 21.9570 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from October 1985 to August 1987, from February 1990 to February 1993, and from November 1994 to October 2010. The record shows that the Veteran previously received 23 months and 28 days of educational benefits under Chapter 30. In 2014, he applied for educational assistance under Chapter 33 and requested that the benefits be transferred to his daughter, M. In a June 2014 letter, M. was informed that she was approved for Chapter 33 benefits, and was erroneously told that 24 months had been transferred from the Veteran for her use. In a November 2014 letter, VA informed M. that she had, in fact, only 8 months and 10 days of benefits remaining. The Veteran filed a notice of disagreement, citing the discrepancy between the amount of benefits awarded in each letter. In a February 2015 Statement of the Case, the Regional Office determined that the Veteran’s remaining benefits had been miscalculated in the initial award letter, and that he only had 12 months and 2 days of benefits remaining for transfer to M. The Veteran appealed this determination. The Post-9/11 GI Bill was enacted by Congress in June 2008. See Pub. L. No. 110-252, Title V, §§ 5001-5003, 122 Stat. 2357 (2008). The statutory provisions are codified at Title 38, U.S.C. Chapter 33. VA promulgated regulations to implement the law in March 2009, and the regulations are now codified at 38 C.F.R. §§ 21.9500-21.9770 (2017). Under these provisions, an eligible individual is entitled to a maximum of 36 months of educational assistance under Chapter 33 and can transfer up to the full 36 months of his or her entitlement to a dependent. 38 C.F.R. §§ 21.9550, 21.9570. A transferor may not transfer an amount of entitlement that is greater than the entitlement he or she has available at the time of transfer. 38 C.F.R. § 21.9570. An individual who, as of August 1, 2009, has used entitlement under Chapter 30, but retains unused entitlement under that chapter, and makes an irrevocable election to receive educational assistance under the provisions of Chapter 33 instead of educational assistance under the provisions of Chapter 30, will be limited to one month (or partial month) of entitlement under Chapter 33 for each month (or partial month) of unused entitlement under Chapter 30 (including any months of Chapter 30 entitlement previously transferred to a dependent that the individual has revoked). 38 C.F.R. § 21.9550 (b)(1) (2017). Importantly, when the Veteran initially elected to use educational assistance benefits under Chapter 30, his additional educational assistance under any other program—including Chapter 33—was limited by that portion of benefits which were used under Chapter 30. It is undisputed that the Veteran had already used 23 months and 28 days of benefits under Chapter 30. Therefore, by law, he is limited to receive (or in this case transfer) 12 months and 2 days of full-time benefits under Chapter 33, for an aggregate total of 36 months of entitlement (36 months less the previously used Chapter 30 benefits). 38 C.F.R. §§ 21.9550 (a), 21.9570. The law dictates that the entitlement under Chapter 33 may not exceed the remaining Chapter 30 entitlement as of August 1, 2009, which in this case is 12 months and 2 days. Therefore, his claim must be denied. The Board acknowledges the Veteran’s assertion that based on the June 2014 letter, in which VA informed him that his request for a transfer of his unused benefits was approved and a total of 24 months were transferred to M., he and his family made financial decisions concerning her education, and that those decisions were seriously affected by the subsequent recalculation by VA. The Board regrets that the Veteran was misinformed as to his potential eligibility and the exact number of months available for transfer. However, it is bound by the applicable law and regulations when determining entitlement to VA benefits, and lacks the authority to disregard the law. Congress did not enact any exceptions to the above-discussed legal provisions that would permit a grant of the requested benefit. As the disposition of this claim is based on the law, and not on a dispute over the facts of the case, the claim must therefore be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board does note, however, that the contentions raised by the Veteran are essentially equitable in nature. The Secretary of VA, but not the Board, has the discretionary power to provide equitable relief, and the Veteran is at liberty to apply to the Secretary and request that he exercise his discretionary authority to grant this claim on an equitable basis. See 38 U.S.C. § 503 (2012); 38 C.F.R. § 2.7 (2017); see also Darrow v. Derwinski, 2 Vet. App. 303, 304 -06 (1992); Taylor v. West, 11 Vet. App. 436, 440-41 (1998). Authority to award equitable relief under 38 U.S.C. § 503 (a) is committed to the sole discretion of the Secretary. The Board is without jurisdiction to consider matters which are solely committed to the Secretary’s exercise of that discretion. See McCay v. Brown, 9 Vet. App. 183, 189 (1996). MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeremy J. Olsen, Counsel