Citation Nr: 20039952 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 13-07 021 DATE: June 11, 2020 ORDER Entitlement to Montgomery GI Bill (Chapter 30) education benefits for on-the-job training (OJT) with US Customs and Border Protection from September 17, 2008 to September 18, 2009 is denied. FINDINGS OF FACT 1. In October 2011, an application for Chapter 30 education benefits was filed with VA for OJT with the US Customs and Border Protection for a period from September 17, 2008 to September 18, 2009. 2. A claim for education benefits under Chapter 30 was not filed with VA for OJT for a period from September 17, 2008 to September 18, 2009 with the US Customs and Border Protection prior to October 2011. CONCLUSION OF LAW The criteria for entitlement to retroactive payment of educational assistance benefits under Chapter 30 for the OJT program completed in March 2010 are not met. 38 U.S.C. §§ 3031, 3452; 38 C.F.R. §§ 21.1029 (b), 21.7131(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1990 to January 1994. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2012 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In November 2017, the Veteran testified before the undersigned Veterans Law Judge at a Board video conference hearing. A copy of the transcript is of record. This matter was previously before the Board in February 2018 at which time the case was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. Chapter 30 educational assistance benefits are provided to veterans who first entered active duty after June 30, 1985. The governing law and regulations for this program are found under 38 U.S.C. §§ 3001-3035 and 38 C.F.R. §§ 21.7000-21.7320. The Veteran in this appeal was awarded Chapter 30 benefits in November 2011 and there is no dispute as to his eligibility for such benefits. Rather, the question is whether he is entitled to Chapter 30 benefits for OJT at US Customs and Border Protection from September 17th, 2008 to September 18th, 2009. More specifically, the issue is whether he submitted a timely application for Chapter 30 education benefits for this period. Applicable regulations governing the payment of Chapter 30 educational benefits prohibit an award for any period earlier than one year prior to the date of the receipt of the application or enrollment certification, whichever is later. Specifically, the date on which an award of educational assistance benefits commences is the latest of the following dates: (1) the date the educational institution certifies the enrollment; (2) the date one year before the VA receives the veteran's application or enrollment certification, whichever is later; (3) the effective date of the approval of the course, or one year before the date VA receives the approval notice, whichever is later. 38 C.F.R. § 21.7131 (a). “Date of claim” is defined as “the date on which a valid claim or application for educational assistance is considered to have been filed with VA, for purposes of determining the commencing date of an award of that educational assistance.” 38 C.F.R. § 21.1029 (b). Under the presumption of administrative regularity, it is presumed that government officials "have properly discharged their official duties." Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992). What this means in an appeal such as this is that it is presumed that a claim received by VA will be appropriately documented in the claims file and/or digital tracking system. The only way to rebut this presumption is with evidence to the contrary. The earliest documented claim on file that VA received regarding the Veteran’s request for Chapter 30 benefits for OJT at US Customs and Border Protection for the period from September 17, 2008 to September 18, 2009, is date stamped on October 27, 2011, which is more than one year after the period that he is requesting benefits. This is consistent with data received from the Department of Defense showing that the date of claim for Chapter 30 education benefits for the Veteran was on October 27, 2011. The Veteran asserts via his written statements and hearing testimony that he initially filed a claim with the U.S. Customs and Border Protection Agency in June 2009 and that the agency, in turn, submitted the claim to VA. In support of this assertion he submitted a copy of the application that he completed and signed in June 2009, but it is not date stamped. As noted above, the date of claim is the date that a claim is “filed with VA’. Thus, even assuming that the Veteran completed the claim in June 2009 and submitted it to the US Customs and Border Protection Agency, this does not meet the definition of filing a claim with VA. Moreover, his submission of a copy of a claim that he signed in June 2009, but is not date stamped, is not enough to rebut the presumption of regularity. Furthermore, letters from US Customs and Border Protection in July 2017 indicating that the Veteran had completed an application for Chapter 30 benefits “in or around 2009”, and that it was submitted to VA “in a timely fashion” is simply too vague to show that it was timely filed pursuant to VA regulation. This is especially so when considering that the training agreement between the Veteran and US Customs and Border Protection for the September 2008 to September 2009 OJT period, was signed by the Veteran in January 2012 and the agency in February 2012. Similarly, the enrollment certification (VA Form 22-1999) wherein the agency certified the Veteran’s enrollment in this program from September 17, 2008 to September 18, 2009, is dated in February 2012. At the Board hearing in November 2017, the Veteran testified that there was some type of confusion regarding his first two attempts to submit the paperwork and “they didn’t go through”. He said that that it was not until the third attempt (in October 2011) that VA acknowledged receiving the claim. He also testified that he did not follow up after his first two attempts since he was not aware that there was a problem. He said that he first filed the paperwork with the US Customs and Border Protection in June 2009, and he could not remember the date of his second attempt. In February 2018, the Board remanded the matter to the AOJ in an attempt to obtain additional information showing that an earlier claim had been filed with VA. In this regard, the AOJ asked the Veteran and US Customs and Border Protection on three separation occasions (in January 2019, December 2019 and January 2020) to provide a copy of the application with proof of receipt by the VA (i.e., a date stamped copy) or letters from the VA to show that a claim had been filed prior to October 2011. Neither the agency nor the Veteran provided VA with such evidence. In fact, the Veteran informed the AOJ in a December 2019 Report of General Information that he had no additional evidence to submit. (Continued on the next page)   Accordingly, the Board finds that the Veteran's application for Chapter 30 benefits for the OJT program at the US Customs and Border Protection Agency from September 17, 2008 to September 18, 2009 was not filed until October 2011, which is more than one year after the date of the program. As such, his claim is not timely and his request for benefits for this period must be denied. 38 C.F.R. § 21.7131 (a). Although the Board is sympathetic to the Veteran's argument that he made earlier (unsuccessful) attempts to file the claim which the Board, 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 (1994). Lesley Rein Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Shawkey, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.