Citation Nr: 18154655 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 15-19 297 DATE: November 30, 2018 ORDER Entitlement to education program “kicker” payments under the provisions of Chapter 33, Title 38, United States Code (Post 9/11 GI Bill) is granted. FINDING OF FACT In May 2015, the Veteran made an irrevocable election in writing to transfer any entitlement to educational assistance benefits under Chapter 1606, Title 10, United States Code (the Montgomery GI Bill-Senior Reserve (MGIB-SR) to the Post 9/11 GI Bill. CONCLUSION OF LAW The criteria for entitlement to education program “kicker” payments under the provisions of Chapter 33, Title 38, United States Code (Post 9/11 GI Bill) are met. 38 U.S.C. §§ 3015, 3222, 3316 (2012); 38 C.F.R. § 21.9650 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 2010 to April 2011, with additional service in the Army Reserves. He seeks entitlement to education program “kicker” payments under the Post 9/11 GI Bill. Generally, VA regulations provide that an individual may establish eligibility for Chapter 33 educational assistance based on active duty service after September 10, 2001, if he or she serves a minimum of 90 aggregate days and is separated from active service with an honorable discharge. Then, after meeting the minimum service requirements, the individual makes an irrevocable election to receive benefits under Chapter 33 by relinquishing eligibility under either 38 U.S.C. § chapter 30 (Montgomery GI Bill (MGIB) or Chapter 30), or 10 U.S.C. chapter 106a, 1606, or 1607. An individual may make an irrevocable election to receive benefits under this chapter by properly completing VA Form 22-1990, application for VA education benefits. 38 C.F.R. § 21.9520 (2017). If an individual is eligible for educational assistance under Chapter 33 by reason of an irrevocable election to relinquish eligibility under 10 U.S.C. chapter 1606 in accordance with the provisions of § 21.9520(c) and, on the date of such election, the individual is also entitled to an increase (“kicker”) of the amount of educational assistance under 10 U.S.C. 16131 (i), the individual remains entitled to that increase under 38 U.S.C. chapter 33. 38 C.F.R. § 21.9650 (c)(1). A claimant may appeal a decision of eligibility or entitlement to educational assistance to the Board in accordance with the provisions of 38 C.F.R. Part 20. Further, a claimant may also appeal a decision of entitlement to educational assistance under 10 U.S.C. 510 and 10 U.S.C. chapters 106a, 1606, and 1607 to the Board in accordance with the provisions of 38 C.F.R. Part 20. However, a claimant may not appeal a decision of eligibility under 10 U.S.C. 510 or 10 U.S.C. chapters 106a, 1606, or 1607 or for supplemental or increased educational assistance under 10 U.S.C. 16131 (i) or 38 U.S.C 3015 (d), 3021, or 3316 to VA, because the Department of Defense (DOD) solely determines eligibility to supplemental and increased educational assistance under those sections. 38 C.F.R. § 21.1034 (2017). In August 2014, the Veteran applied for educational assistance benefits under the Post 9/11 GI Bill. At that time, he chose to relinquish benefits under Chapter 1607 effective August 11, 2014, to receive benefits under the Post 9/11 GI Bill. Subsequently, he was notified that he was ineligible for “kicker” payments, as he had not yet relinquished his entitlement to educational assistance benefits under Chapter 1606. In May 2015, the Veteran submitted a statement with his VA Form 9 in which he stated that he was now choosing to relinquish benefits under Chapter 1606 (the Montgomery GI Bill-Senior Reserve (MGIB-SR)) effective August 12, 2014, to receive benefits under the Post 9/11 GI Bill. He indicated in that statement that he understood that the election was irrevocable. Although the Veteran did not complete a VA Form 22-1990 in May 2015, the Board finds that the May 2015 statement is an irrevocable election to transfer any entitlement to educational assistance benefits under Chapter 1606, Title 10, United States Code (MGIB-SR) to the Post 9/11 GI Bill. Therefore, because of the Veteran’s irrevocable election to relinquish eligibility under Chapter 1606 for Post 9/11 GI Bill educational assistance, he is entitled to that kicker increase. The Board thus finds that the criteria for entitlement to education program “kicker” payments under the provisions of Chapter 33, Title 38, United States Code (Post 9/11 GI Bill or Chapter 33) are met and the appeal is granted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeremy J. Olsen, Counsel