Citation Nr: 18159942 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 15-14 736 DATE: December 20, 2018 ORDER Entitlement to payment of an increased amount of educational assistance (“kicker”) as provided under Chapter 1606, Title 10, United States Code (Montgomery GI Bill Selected Reserve), in connection with educational assistance under Chapter 33, Title 38, United States Code (the Post-9/11 GI Bill), is denied. FINDINGS OF FACT 1. On January 15, 2014, VA received the Veteran’s application for Post-9/11 GI Bill (Chapter 33) education benefits, which included an irrevocable election of Chapter 33 benefits in lieu of educational assistance under 10 U.S.C. § Chapter 1607 (Reserve Education Assistance Program). 2. The Veteran did not make an irrevocable election to relinquish eligibility under Chapter 1606 in connection with his application for Chapter 33 education benefits. CONCLUSION OF LAW The criteria for “kicker” education program payments under Chapter 1606 in connection with benefits under Chapter 33 are not met. 10 U.S.C. § 1631 (2012); 38 U.S.C. §§ 3301–3325; 38 C.F.R. §§ 21.9520, 21.9650. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2011 to March 2012, from February 2013 to October 2013, and from August 2015 to March 2016. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. 1. Entitlement to payment of an increased amount of educational assistance (“kicker”) as provided under Chapter 1606, Title 10, United States Code (Montgomery GI Bill Selected Reserve), in connection with educational assistance under Chapter 33, Title 38, United States Code (the Post-9/11 GI Bill). An individual may establish eligibility for educational assistance under 38 U.S.C. Chapter 33 (Post-9/11 GI Bill) 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. After meeting the minimum service requirements, the individual must make an irrevocable election to receive benefits under Chapter 33 by relinquishing eligibility under either 38 U.S.C. Chapter 30 or 10 U.S.C. Chapters 106a, 1606, or 1607. 38 U.S.C. § 3311 (2012); 38 C.F.R. § 21.9520 (2017). As pertinent to this case, an individual may make such an irrevocable election by properly completing VA Form 22-1990. 38 C.F.R. § 21.9520(c)(2). Chapter 1606 benefits are available to veterans who enlisted in the Selected Reserve for six years or more after June 30, 1985, or who served as Reserve Officers in the Selected Reserve for not less than six years in addition to any other obligation. 10 U.S.C. § 16132 (2012); 38 C.F.R. § 21.7540 (2017). Veterans who served on active duty as part of a Reserve Component after September 11, 2001, for at least 90 days are eligible for Chapter 1607 benefits. 10 U.S.C. § 16163 (2012); 38 C.F.R. § 21.9520. Under Chapter 1606, the Secretary of the military department concerned may increase the amount of educational assistance available to a person who has certain skills or specialties by as much as $350 per month, commonly referred to as a Chapter 1606 “kicker.” 10 U.S.C. § 16131(i) (2012). 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 a Chapter 1606 kicker under 10 U.S.C. § 16131(i), the individual will remain entitled to that kicker under 38 U.S.C. Chapter 33. 38 C.F.R. § 21.9650(c)(1) (2017). On January 15, 2014, VA received the Veteran’s VA Form 22-1990 Application for VA Education Benefits and the record shows that he was entitled to a Chapter 1606 kicker on that date. See January 2014 Information Report (indicating that the Veteran was eligible for a Chapter 1606 “kicker” as of January 30, 2012). By way of his January 15, 2014, application, the Veteran elected to receive Chapter 33 benefits in lieu of benefits under Chapter 1607 (Reserve Educational Assistance Program or “REAP”). See December 2014 VA correspondence. This election is irrevocable and cannot be changed. See 38 C.F.R. § 21.9520(c)(2). The record does not show that the Veteran made an irrevocable election to relinquish eligibility under Chapter 1606 in accordance with the provisions of § 21.9520(c) in order to receive a Chapter 1606 kicker under Chapter 33. Accordingly, because the Veteran’s eligibility under Chapter 33 was not based on an irrevocable election to relinquish eligibility for Chapter 1606 benefits, he is not entitled to payment of the Chapter 1606 kicker amount as a part of payment of Chapter 33 benefits. 38 C.F.R. § 21.9650(c). There is no statutory or regulatory provision that provides for payment of increased kicker amounts under Chapter 33 for individuals eligible for Chapter 33 by reason of relinquishment of Chapter 1607 benefits. See 38 C.F.R. § 21.9650 (listing the types of increase (kicker) amounts available under Chapter 33). In reaching this conclusion, the Board has considered the Veteran’s arguments, particularly those contained in correspondence received by VA in October 2014 and his March 2015 Notice of Disagreement. Regrettably, the selection made by the Veteran is irrevocable and there is no statutory or regulatory exception to this irrevocable selection. Thus, there is nothing the Board can do under the law as it currently exists. For these reasons, the Veteran’s claim must unfortunately be denied. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. C. Wilson, Counsel