Citation Nr: 18157431 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 15-27 086A DATE: December 12, 2018 ORDER As basic eligibility to receive educational assistance benefits under the provisions of Chapter 30, Title 38, United States Code (known as the Montgomery GI Bill (MGIB)) has not been established, the claim is denied. FINDING OF FACT The Veteran elected not to participate in VA’s basic educational assistance program under the provisions of Chapter 30 and his declination to participate in such program was not later withdrawn. CONCLUSION OF LAW The criteria for basic eligibility for Chapter 30 educational assistance benefits are met. 38 U.S.C. §§ 3011, 3018B (2012); 38 C.F.R. §§ 21.7042, 21.7045 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1986 to January 1990. This appeal to the Board of Veterans’ Appeals (Board) on appeal arose from an April 2015 determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, wherein the RO denied entitlement to Chapter 30 educational assistance benefits. (The Board notes, parenthetically, that a copy of the letter notifying the Veteran of the denial of his claim is not of record; however, as the Board is able to review the statement of the case (SOC), which provides reasons for the RO’s determination that the Veteran did not meet basic eligibility requirements for receipt of Chapter 30 educational assistance benefits, the Board’s inability to review the April 2015 determination is therefore not prejudicial to the Veteran. Accordingly, the Board finds no reason to delay adjudication of the matters currently before it to attempt to obtain a copy of the RO’s April 2015 decision.) The Board notes that on his August 2015, VA Form 9 (Appeal to the Board of Veterans’ Appeals), the Veteran indicated his desire for a Board hearing before a Veterans Law Judge, in Washington, D.C. The Veteran was initially scheduled for such hearing to be held on March 7, 2017, but requested that the hearing be postponed until May 2017, due to financial constraints. The Veteran was then scheduled for a hearing to be held in Washington, D.C., on May 1, 2017. The Veteran failed to report for his scheduled hearing. As the record does not reflect that Veteran has either explained his failure to report, or requested rescheduling of the hearing, the Board will proceed as though his hearing request has been withdrawn. See 38 C.F.R. § 20.704(d). In the instant case, the Veteran is seeking to establish basic eligibility for Chapter 30 educational assistance benefits. An individual who, after June 30, 1985, first becomes a member of the Armed Forces, may elect not to receive Chapter 30 educational assistance benefits. This election must be made at the time the individual initially enters active duty as a member of the Armed Forces. An individual who makes such an election is generally not eligible for education assistance under Chapter 30. 38 U.S.C. § 3011(c); 38 C.F.R. § 21.7042(f)(1). Nevertheless, an individual who elects not to enroll in this educational assistance program may establish eligibility by withdrawing the declination during the period from December 1, 1988, through June 30, 1989. 38 C.F.R. § 21.7042(c). A review of the record shows that the Veteran elected not to enroll in Chapter 30 benefits. Specifically, contained amongst the Veteran’s service records is a DD Form 2366 (Veterans Educational Assistance Act of 1984 (GI Bill)), signed by the Veteran and dated in February 1986, wherein the Veteran indicated that he did not desire to participate in the GI Bill of 1984. The Veteran’s understanding that the option to enroll would not be available to him at a later date was also noted. Notably, the Veteran does not dispute that he initially declined participation in VA’s Chapter 30 educational assistance program. Further, there is no indication that the Veteran’s declination was withdrawn and the Veteran does not assert otherwise. Rather, the Veteran has asserted that he was not given an opportunity to withdraw his election not to enroll in the Chapter 30 educational assistance program during the applicable time period. Unfortunately, in the instant case, the Veteran did not elect to participate in the basic educational assistance program under the Chapter 30. Rather, he declined to participate in that program in February 1986, as confirmed by his service records, and as he has acknowledged. The Veteran also did not withdraw his election not to enroll within the applicable period. The Board recognizes the Veteran’s contentions that he was not informed regarding the ability to withdraw his election not to enroll in the Chapter 30 educational assistance program. Unfortunately, however, there is no provision that allows for payment of Chapter 30 benefits to those who elected not to enroll in the Chapter 30 educational assistance program and who did not later withdraw their declination during the applicable time period, even if a claimant was unaware of his/her ability to withdraw the election not to enroll. Thus, despite the Veteran’s request, the Board lacks the legal authority to award benefits outside the scope of the law, and has no authority to grant claims on an equitable basis. See 38 U.S.C. § 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994) (“No equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress”). Lastly, the Board points out that the Veterans Claims Assistance Act of 2000, codified in pertinent part at 38 U.S.C. §§ 5103, 5103A and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, describe VA’s duties to notify and assist claimants in substantiating a claim for VA benefits. These notice and duty to assist provisions are extended to VA education claims. See 38 C.F.R. §§ 21.1031-32. However, where, as here, the claim is essentially being denied as a matter of law, the duties imposed by the VCAA are not applicable. See, e.g., 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