Citation Nr: 18160260 Decision Date: 12/28/18 Archive Date: 12/26/18 DOCKET NO. 14-32 837 DATE: December 28, 2018 ORDER As the payment of educational assistance benefits under Chapter 33, Title 38, United States Code (known as the Post-9/11 GI Bill) in the amount of $446.90 for books and supplies for the school term beginning on August 19, 2013, and ending on December 13, 2013, was correct, the appeal is denied. The claim of entitlement to monthly housing allowance benefits under Chapter 33 for the school term beginning on August 19, 2013, is denied. FINDINGS OF FACT 1. During the school term from August 19, 2013, through December 13, 2013, the Veteran was enrolled in courses at Adams State University while he was incarcerated at a Federal Correctional Institution for conviction of a felony. 2. The school certifying official at Adams State University certified that the cost for necessary books and supplies for the school term beginning in August 2013 was $446.90. CONCLUSION OF LAW 1. The criteria for payment of Chapter 33 educational assistance benefits greater than $446.90 for books and supplies for the school term from August 19, 2013, through December 13, 2013 have not been met. 38 U.S.C. § 3313; 38 C.F.R. § 21.9640, 21.9675. 2. The criteria for payment of a monthly housing allowance for the school term beginning in August 2013 have not been met. 38 C.F.R. § 21.9675 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1996 to February 1997 and from April 1998 to August 2003. This appeal to the Board of Veterans’ Appeals (Board) on appeal from an October 2013 Department of Veterans Affairs (VA) Regional Office (RO) determination that the Veteran was entitled to receive Chapter 33 educational assistance benefits in the amount of $446.90 for books and supplies for the school term beginning on August 19, 2013. As to other benefits to which the Veteran was then eligible, the RO indicated only that he was entitled to receive tuition and fees; no mention of a monthly housing allowance was made. The Veteran disagreed with that determination, noting that he had not been awarded the full amount payable for books and supplies or a housing allowance. The RO issued a statement of the case (SOC) addressing whether VA had erred in its determination regarding the payment of Chapter 33 educational assistance benefits for books and supplies and/or a monthly housing allowance. The Veteran then timely filed a substantive appeal (via a VA Form 9 (Appeal to the Board of Veterans’ Appeals). In January 2016, the Board remanded, for further development, the issue of whether the amount paid for book and supplies or the monthly housing allowance for the term beginning on August 19, 2013, was correct. Upon completion of the requested development, the agency of original jurisdiction (AOJ) issued a supplemental SOC (SSOC) and the matter was returned to the Board. Although this appeal was previously framed as only one issue, for the sake of clarity and because adjudication of the claims require slightly different analyses, the Board has recharacterized the appeal as involving two issues, as set forth above. Turning first to whether the AOJ correctly determined that the Veteran was entitled Chapter 33 benefits for books and supplies only in the amount of $446.90 for the school term from August 19, 2013, through December 13, 2013, the Board notes that for the academic year beginning on August 1, 2013, a veteran entitled to benefits under the Post-9/11 GI Bill may also be paid a yearly book and supplies stipend of up to $1000, paid proportionately based on enrollment. 38 US.C. § 3313(c)(1)(B)(iv); 38 C.F.R. § 21.9640(b). Notably, however, where an eligible individual is incarcerated in a Federal, State, local, or other penal institution or correctional facility due to a felony conviction, VA will reduce the amount of educational assistance otherwise payable. Specifically, the amount of educational assistance payable to such individual will be the lesser of: (i) The amount equal to any portion of tuition and fees charged for the course that are not paid by a Federal (other than one administered by VA), State, or local program plus an amount equal to any charges to the eligible individual for the cost of necessary books, supplies, and equipment; or (ii) The amount of tuition and fees otherwise payable to the individual based on the individual’s length of creditable service as determined in [38 C.F.R.] § 21.9640(a) and the individuals’ rate of pursuit, plus an amount equal to any charges to the eligible individual for the cost of necessary books, supplies, and equipment. 38 C.F.R. § 21.9675(c). In the instant case, the evidence shows that during the term in question, the Veteran was incarcerated at the Federal Correctional Institution in Forrest City, Arkansas, where he was serving a 120 month sentence for a felony conviction. The evidence also shows that the Veteran was enrolled in courses at Adams State University. Accordingly, for the term beginning on August 19, 2013, in addition to tuition, the Veteran was entitled to payment of Chapter 33 educational assistance benefits equal to the “the cost of necessary books, supplies, and equipment.” The Veteran has submitted receipts showing that for the school term beginning in August 2013, the Veteran spent $564.68 on books and supplies, which included payment for a collegiate dictionary and two writer’s reference manuals. (Parenthetically, the Board notes that there appears to be a discrepancy between the dates of the school term and the dates that materials were purchased; it is indicated, however, that the Veteran had one year to complete the course, which accounts for such discrepancy.) The Veteran thus believes that he is entitled to an additional $117.78. Although the Veteran has submitted evidence showing the amounts actually paid for book and supplies for the term beginning in August 2013, the school certifying official at Adams State University has certified that the cost of necessary books and supplies amounted to only $446.90. It is further noted that the dictionary and writer’s reference manual were not part of the course requirements. Accordingly, because it has been certified that the necessary books and supplies for the school term beginning in August 2013 cost only $446.90, the Board cannot conclude that VA erred in failing to reimburse educational assistance benefits in excess of that amount. The Board understands that the Veteran believed that the collegiate dictionary and two writer’s reference manuals would assist him in his courses; unfortunately, however, due to the Veteran’s then-status as an incarcerated felon, there is no provision in law that allows for the payment of books not deemed necessary by the educational institution, and the Veteran’s claim must be denied. Turning to whether the Veteran was entitled to a monthly housing allowance for the school term running from August 19, 2013, through December 13, 2013, the law provides that VA can authorize only the costs of tuition, fees, and necessary book and supplies to a claimant who is incarcerated for a felony. See 38 C.F.R. § 21.9675(c). Thus, because the Veteran was incarcerated for a felony during the term in question, he was not entitled to a monthly housing allowance. In this regard, the Board notes that there seems to be some discrepancy in the record with regard to whether he was or was not paid a monthly housing allowance for the term in question, as the award letter states nothing about a monthly housing allowance being paid. However, in an undated administrative decision, it is indicated that the Veteran was paid a monthly housing allowance for both the term running from January 14, 2013, through May 10, 2013, and the term running from August 19, 2013, through December 13, 2013. In any event, it was determined that any benefits erroneously paid were due to administrative error and through no fault of the Veteran. Accordingly, an overpayment was not created or charged against the Veteran. The Board understands the Veteran’s position and commends the Veteran on his pursuit of education. However, the Board is bound by the laws and regulations that apply to Veterans claims. 38 U.S.C. § 7104(c); 38 C.F.R. §§ 19.5, 20.101(a). In this case, those laws and regulations indicate that there is no legal basis on which the Veteran’s claims 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. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 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, supra. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Neilson, Counsel