Citation Nr: 18152124 Decision Date: 11/21/18 Archive Date: 11/20/18 DOCKET NO. 15-16 803 DATE: November 21, 2018 ORDER Entitlement to Post-9/11 Educational Assistance at the 100 percent rate is denied. FINDINGS OF FACT 1. The Veteran’s enlistment contract documents that he enlisted into the U.S. Army under a Loan Repayment Program (LRP). 2. The Veteran’s creditable active duty service was 730 days, a period of more than 24 months but less than 30 months; additionally, he was not discharged due to a service-connected disability. CONCLUSION OF LAW The criteria for educational assistance under the Post 9/11 GI Bill at a rate in excess of 80 percent have not been met. 10 U.S.C. § 2171 (2012); 38 U.S.C. 3311, 3322, 5103, 5107 (2012); 38 C.F.R. §§ 21.9505, 21.9520, 21.9640 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from July 2008 to July 2013. In March 2016, he testified before a Veterans Law Judge (VLJ) at a Board hearing held at the Regional Office (RO); a transcript of the hearing has been associated with the record. The VLJ who conducted the hearing has since retired from the Board. An October 2017 letter informed the Veteran of his right to testify at a new hearing. See 38 U.S.C. § 7107 (c) (2012); 38 C.F.R. § 20.707 (2017). The Veteran did not respond within 30 days of the date of the letter, as instructed; thus, the Board will assume that a new hearing is not desired and will consider the case on the evidence of record. At the outset, the Board notes that the Veteran’s basic eligibility for Chapter 33 (Post-9/11 GI Bill) education benefits is not in dispute. Rather, the dispute in this case concerns the percentage at which such benefits should be calculated. The amount of educational assistance payable under 38 U.S.C. Chapter 33 is calculated in accordance with a table measuring the aggregate length of creditable active duty service after September 10, 2001. 38 U.S.C. §§ 3311 (b)(3), 3313; 38 C.F.R. § 21.9640. The percentage of maximum amounts payable is 40 percent with at least 90 days, but less than 6 months, of creditable active duty service (90 to 179 days); 50 percent with at least 6 months, but less than 12 months, of creditable active duty service (180 to 364 days); 60 percent with at least 12 months, but less than 18 months, of creditable active duty service (365 to 544 days); 70 percent with at least 18 months, but less than 24 months, of creditable active duty service (545 to 729 days); 80 percent with at least 24 months, but less than 30 months, of creditable active duty service (730 to 909 days); 90 percent with at least 30 months, but less than 36 months, of creditable active duty service (910 to 1094 days); and 100 percent with at least 36 months of creditable active duty service (1095 days or more) or with at least 30 continuous days of creditable active duty service and a discharge due to a service-connected disability. 38 C.F.R. § 21.9640 (a). Importantly, a period of service counted for purposes of repayment of an education loan under 10 U.S.C. Chapter 109, known as the Loan Repayment Program, or LRP, may not be counted as a period of active duty service for entitlement to educational assistance under the Post-9/11 GI Bill. 38 U.S.C. § 3322 (b); 38 C.F.R. § 21.9505. Following the Veteran’s application for education benefits under the Post-9/11 GI Bill, in an April 2013 determination the Regional Office (RO) granted eligibility for benefits and found that he was entitled to receive 100 percent of the maximum benefits payable under Chapter 33, as he had 1,745 days of creditable active duty service. However, in subsequent communication, the RO corrected its initial findings. It determined that, based on the fact that 1,096 days of the Veteran’s service from July 2008 to July 2011 was undertaken as part of an LRP obligation, his creditable active duty service was therefore only 730 days, resulting in his receipt of 80 percent of the maximum payable benefits. 38 C.F.R. § 21.9640. The Board must similarly find, based on the evidence of record, that the Veteran’s initial 1,096-day period of service obligation under the LRP cannot be counted as a period of service for entitlement to educational assistance under the Post-9/11 GI Bill. 38 U.S.C. § 3322 (b). The remainder of his active duty, 730 days, represents the total amount of his creditable service for purposes of determining the appropriate qualifying payment rate for Chapter 33 educational benefits. There are no additional periods of qualifying service. There is also no indication that the Veteran was discharged due to a service-connected disability, as contemplated by the 100 percent rate. His DD Form 214 shows that he was discharged from service due to the completion of his required active service, as denoted by his separation code of MBK. Under the applicable regulation, when the duration of creditable service is at least 24 months, but less than 30 months, a maximum payment rate of 80 percent, as is currently assigned, is warranted. 38 C.F.R. § 21.9640 (a). The Veteran himself does not dispute the computation of his creditable service, and testified at a March 2016 hearing that he understands that his service under the LRP is ineligible for purposes of calculating the rate. Rather, the Veteran contends that he is entitled to payment of Chapter 33 benefits at the 100 percent level because he made significant education and financial choices based on his understanding that he would receive payment at the 100 percent level. He asserted in his October 2014 notice of disagreement that had he known that his education benefits would not be paid at the 100 percent level, he would not have pursued his education. The Board sincerely sympathizes with the Veteran, but is unable to grant his claim. It is bound by the applicable law and regulations when deciding a claim for VA benefits. Unfortunately, there is no provision for benefits based on the Veteran’s arguments of equity, fairness, or that he relied on erroneous information supplied by VA to his detriment. The Board is without authority to grant the appeal on an equitable basis and instead is constrained to follow the specific provisions of the law. It is evident that the April 2013 certificate of eligibility was incorrect, in that it awarded a 100 percent rating. However, VA is not bound by administrative error. McTighe v. Brown, 7 Vet. App. 29, 30 (1994) (erroneous advice given by a government employee cannot be used to estop the government from denying benefits). Rather, the Board is bound to follow VA’s statutes and regulations and, under those statutes and regulations, has no authority to grant benefits on an equitable basis. See Owings v. Brown, 8 Vet. App. 17, 23 (1995) (even where VA misinforms a veteran regarding eligibility for benefits, the doctrine of equitable estoppel cannot be used to grant monetary benefits not authorized by statute), aff’d 86 F.3d 1178 (Fed.Cir.1996). The law does provide for equitable relief in those instances where, as here, there has been administrative error, but such relief may only be granted at the discretion of the Secretary of VA. 38 U.S.C. § 503 (2017). The Board offers no opinion on this matter but advises the Veteran that if he wishes to petition for equitable relief, he may file such a petition with the Secretary. The Board is without jurisdiction to consider that which is solely committed to the Secretary’s exercise of that discretion. See McCay v. Brown, 9 Vet. App. 183, 189 (1996). As the Board is bound by the applicable law and regulations, the appeal must be denied. See 38 U.S.C. § 7104 (c). In this case, the Veteran’s initial 1,096 days of active duty is explicitly excluded from creditable active duty service under the law and regulations governing eligibility for the Post 9/11 GI Bill, and his creditable service is 730 days. Qualifying service of 730 days entitles the Veteran to payment of Chapter 33 benefits at the 80 percent level. Accordingly, based on the evidence of record and the Veteran’s contentions, there is no legal basis by which a claim for a higher rate of payment can be granted. As the law and not the evidence is dispositive in this case, the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeremy J. Olsen, Counsel