Citation Nr: 18155410 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-26 241 DATE: December 4, 2018 ORDER The claim of entitlement to educational assistance benefits under Chapter 33, Title 38, United States Code (known as the Post-9/11 GI Bill), is denied. FINDING OF FACT The Veteran’s period of service from September 2011 to February 2016 was used to establish eligibility for educational assistance benefits under Chapter 30, Title 38, United States Code (known as the Montgomery GI Bill-Active Duty (MGIB-AD)); the record does not contain a properly executed irrevocable election to receive Chapter 33 educational assistance benefits in lieu of receiving such benefits under Chapter 30. CONCLUSION OF LAW The criteria for eligibility for Chapter 33 educational assistance benefits are not met. 38 U.S.C. §§ 3301, 3311, 3313, 3322; 38 C.F.R. §§ 21.9505, 21.9520, 21.9640. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 2011 to February 2016. This appeal to the Board of Veterans’ Appeals (Board) arose from a January 2016 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that the Veteran was not eligible to receive VA educational assistance benefits under the Post-9/11 GI Bill. The Veteran disagreed with that determination, and subsequently perfected on appeal. 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 October 2013, the Veteran filed an application for VA education benefits. Specifically, he applied, and was approved, for educational assistance benefits under Chapter 30. In December 2015, the Veteran submitted another application for VA education benefits, on which he stated that was seeking benefits under Chapter 30 and Chapter 33, as well as under the Post-Vietnam Era Veterans’ Educational Assistance Program (VEAP), Chapter 32, Title 38, United States Code. Although the application contains information regarding the election of Chapter 33 benefits in lieu of receiving Chapter 30 benefits, there is no indication on the application submitted that the Veteran made such irrevocable election. In January 2016, the Veteran was denied Chapter 32 educational assistance benefits because he had entered military service after June 30, 1985. The Veteran was also denied Chapter 33 educational assistance benefits based on insufficient qualifying service after September 10, 2001. Specifically, it was determined that because the Veteran had only one period of service, which period of service had previously been used to establish entitlement to Chapter 30 educational assistance benefits, that same period of service could not be used to establish separate entitlement to Chapter 33 educational assistance benefits. The Veteran disagreed with the RO’s denial of Chapter 33 educational assistance benefits, stating that he would like to relinquish his Chapter 30 eligibility in favor of establishing eligibility under Chapter 33. Relevant to the instant claim, the Post 9/11 GI Bill provides for VA educational assistance for members of the Armed Forces based on active duty service after September 10, 2001. Here there is no question that the Veteran served on active duty after September 10, 2001. The Board finds further that the Veteran meets the basic eligibility requirements for receipt of Chapter 33 educational assistance benefits, as set forth in 38 U.S.C. § 3311 and 38 C.F.R. § 21.9520(b). Regardless, however, of whether the Veteran is eligible for educational assistance benefits the Post 9/11 GI Bill, the law provides that individuals entitled to educational assistance benefits under Chapter 33 who are also eligible for educational assistance under Chapter 30, among other programs, “may not receive assistance under two or more such programs concurrently, but shall elect (in such form and manner as the Secretary may prescribe) under which chapter or provisions to receive educational assistance.” 38 U.S.C. § 3322(a). The law also prohibits duplication of eligibility based on a single event or period of service. 38 U.S.C. § 3322(h)(1). Specifically, it is stated that “[a]n individual with qualifying service in the Armed Forces that establishes eligibility on the part of such individual for educational assistance under [chapter 33], chapter 30 or 32 of this title, and chapter 1606 or 1607 of title 10, shall elect (in such form and manner as the Secretary may prescribe) under which authority such service is to be credited.” Id. Accordingly, because the Veteran’s period of service beginning in September 2011 was used to establish eligibility for receipt of Chapter 30 educational assistance benefits, that same period cannot be used to establish separate entitlement to Chapter 33 educational assistance benefits. 38 U.S.C. § 3322(h)(1). Regarding the Veteran’s desire to receive Chapter 33 educational assistance benefits in lieu for Chapter 30 benefits, the law provides that an individual who meets the minimum service requirements for basic eligibility for Chapter 33 educational assistance, and who is eligible for educational assistance under Chapter 30, may receive Chapter 33 educational assistance if he/she makes an irrevocable election to receive benefits under Chapter 33 in lieu of receiving such benefits under Chapter 30. 38 C.F.R. § 21.9520(c)(1). An individual may make an irrevocable election to receive benefits under Chapter 33 by properly completing VA Form 22-1990, submitting a transfer-of-entitlement designation under this chapter to the Department of Defense, or submitting a written statement that includes the following: (i) identification information (including name, social security number, and address); (ii) if applicable, an election to receive benefits under chapter 33 in lieu of benefits under, e.g., the MGIB; (iii) the date the individual wants the election to be effective; and (iv) an acknowledgement that the election is irrevocable (e.g., “I understand that my election is irrevocable and may not be changed.”). 38 C.F.R. § 21.9520(c)(2). Here, the Veteran’s December 2015 application for VA education benefits was submitted on a VA Form 21-1990. However, there is no indication that the Veteran thereupon made an irrevocable election to receive Chapter 33 benefits in lieu of Chapter 30 benefits. Indeed, the application of record contains no election date, and thus, it cannot be said that the VA Form 22-1990 submitted by the Veteran in December 2015 was properly completed so as to allow him to receive benefits under Chapter 33. Further, while the Veteran has submitted numerous statements indicating his desire to receive Chapter 33 benefits in lieu of Chapter 30 benefits, none of the submitted written correspondence contains the date the Veteran wants the election to be effective as required by 38 C.F.R. § 21.9520(c)(2). Accordingly, the Board cannot conclude that the Veteran has properly executed an irrevocable election of Chapter 33 Post-9/11 GI Bill benefits in this case. While sympathetic to the Veteran’s claim in this case, the Board is bound by the law and is without authority to grant benefits on an equitable basis. 38 U.S.C. §§ 503, 7104. The eligibility requirements for educational assistance are prescribed by Congress and regulations enacted by the Armed Forces and VA and neither the RO nor the Board is free to disregard laws and regulations enacted for the administration of VA educational programs. 38 U.S.C.§ 7104(c); 38 C.F.R. § 20.101(a); see Harvey v. Brown, 6 Vet. App. 416, 424 (1994) (holding that “the remedy for breach of an alleged obligation cannot involve payment of benefits where the statutory eligibility requirements for those benefits are not met”). The Board notes, however, that nothing in this decision prevents the Veteran from properly completing a VA Form 21-1990 or otherwise providing a written statement containing the requisite information to receive benefits under Chapter 33 in lieu of benefits under Chapter 30. As a final point, the Board notes that where, as here, the law is dispositive in a matter, the notice provisions of the Veterans Clams Assistance Act of 2000 (VCAA) and, by analogy, the comparable educational assistance provisions, have no effect. That is because no further notice or assistance to the claimant would result in a different outcome because, as discussed above, the facts make clear that entitlement to educational assistance benefits under Chapter 33 are not warranted as a matter of law. See 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance for a claim requesting a benefit to which the claimant is not entitled as a matter of law). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Neilson, Counsel