Citation Nr: 18160813 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 15-18 465A DATE: December 27, 2018 ORDER The claim of entitlement to a refund of educational contributions made pursuant to Chapter 30, Title 38, United States Code (known as the Montgomery GI Bill (MGIB)), in the amount of $1,200.00, is denied. FINDINGS OF FACT 1. During service, the Veteran made contributions to the MGIB program in the amount of $1,200.00. 2. Effective May 9, 2011, the Veteran made an irrevocable election to receive educational assistance benefits under Chapter 33, Title 38, United States Code (known as the Post-9/11 GI Bill) in lieu of receiving such benefits under Chapter 30. 3. As of the date of his request for refund, the Veteran had 10 months and 8 days of Chapter 33 entitlement remaining. CONCLUSION OF LAW The criteria for entitlement to a refund of contributions paid to the MGIB program have not been met. 38 U.S.C. § 38 U.S.C.A. §§ 3011, 3012; 38 C.F.R. § 21.9645. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from August 2007 to August 2011. This appeal to the Board of Veterans’ Appeals (Board) arose from a March 2015 determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, informing the Veteran that he could not be approved for a refund of his MGIB contributions because he had not exhausted his entitlement to educational assistance benefits under Chapter 33. The Veteran disagreed with that decision and perfected an appeal to the Board. Regarding representation, the Board notes that in April 2012, the Veteran executed a VA Form 21-22 in favor of the Oregon Department of Veterans’ Affairs (ODVA). In October 2015, ODVA sent to the Veteran a letter inquiring as to whether he was still a resident of Oregon, which letter is contained in the Veteran’s paperless claims file. It was indicated that if ODVA did not hear from the Veteran within 30 days, it would rescind the Veteran’s power of attorney (POA) with ODVA, effective the date of that letter. The claims file contains no further communication between the Veteran and ODVA. There is also no indication that ODVA formally rescinded its POA or otherwise ceased its representation of the Veteran. Accordingly, the Board continues to recognize ODVA as the Veteran’s representative in this appeal. In the instant case, the Veteran seeks a refund of the monetary contribution that he made during service to enroll in the MGIB program. The Veteran acknowledges that he has not exhausted his entitlement o Chapter 33 educational assistance benefits, but argues that he should be afforded an exception to the law so as to enable him to use his refunded MGIB contributions to pay certain educational assistance loans. Relevant to the matter currently before the Board, the record shows that the Veteran made contributions towards the MGIB program in the amount of $1,200.00. Effective May 9, 2011, the Veteran made an irrevocable election to receive Chapter 33 benefits in lieu of Chapter 30 benefits, and in October 2011 he was awarded Chapter 33 educational assistance benefits. The Veteran then used those benefits to attend the University of Oregon. As of his date of graduation from the University of Oregon in June 2014, the Veteran had remaining 10 months and 8 days of entitlement remaining. Notably, the Veteran does not dispute this fact. Applicable law governing refunds of contributions paid towards the MGIB program provides that, if certain criteria are met, an individual who makes an irrevocable election to receive educational assistance under Chapter 33 by relinquishing eligibility under chapter 30 will be entitled to receive a refund of the amount contributions paid under 38 U.S.C. § 3011 (b) or 3012(c), up to $1,200. 38 C.F.R. § 21.9645. Specifically, an individual who makes an irrevocable election to receive educational assistance under this Chapter 33 by relinquishing eligibility under Chapter 30 will be entitled to receive a refund of the amount contributions paid towards the MGIB program if the individual, as of the date of the individual’s election, meets the requirements for entitlement to educational assistance under this chapter and meets one of the following requirements as of August 1, 2009: (i) He or she is eligible for basic educational assistance under 38 U.S.C. chapter 30 and has remaining entitlement under that chapter; (ii) He or she is eligible for basic educational assistance under 38 U.S.C. chapter 30 but has not used any entitlement under that chapter; or (iii) He or she is a member of the Armed Forces who is eligible to receive educational assistance under 38 U.S.C. chapter 30 because he or she has met the requirements of § 21.7042(a) or (b) and is making contributions as provided in § 21.7042(g). 38 C.F.R. 21.9645(a). Notably, however, refunds of MGIB contributions will not be made until after all entitlement under the Post-9/11 GI Bill is used. Specifically, with regard to timing of payment, the applicable regulation provides that “[t]he amount payable under this section will only be paid to the individual who made the contribution as an increase to the monthly housing allowance payable under [38 C.F.R] § 21.8640(b)(1)(ii) or (b)(2)(ii) at the time his or her entitlement exhausts.” 38 C.F.R. § 21.9654(c) In other words, individuals who do not use all their entitlement under the Post-9/11 GI Bill will not receive a refund of contributions paid under the MGIB. Further, individuals must be receiving a housing allowance at the time entitlement exhausts to receive the refund of contributions paid to the MGIB program, as the refund comes with the last housing payment. Unfortunately, in this case, at the time that the Veteran sought a refund of contributions paid under the MGIB, he had not yet exhausted his entitlement to Chapter 33 educational assistance benefits. Therefore, the claim for a refund of the monetary contribution made during service to enroll in the MGIB program must be denied. In so concluding, the Board has considered the arguments advanced by the Veteran. Unfortunately, there is no provision that allows for a refund of a refund of contributions paid under the MGIB where an individual eligible for such refund has not yet exhausted his/her entitlement to educational assistance benefits under Chapter 33. 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