Citation Nr: A21016624 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 200518-88653 DATE: October 12, 2021 ORDER Entitlement to an additional 13 months, but no more, of educational assistance benefits under Chapter 33, Title 38, United States Code (Post 9/11 GI Bill) via the transfer of entitlement (TOE) provision is granted. FINDINGS OF FACT 1. The Veteran served on active duty in the United States Air Force from October 1991 to August 2001 and from May 2003 to November 2014. 2. The Veteran received 35 months of education benefits under Chapter 30 at the time of his November 8, 2010, request for Chapter 33 benefits for his dependent children under the TOE provision. 3. In April 2020, VA made an alternative election on the Veteran's behalf to relinquish Chapter 30 benefits effective November 8, 2010, in lieu of Chapter 33 benefits under the TOE provision. CONCLUSION OF LAW The criteria for an additional 13 months, but no more, of educational assistance benefits under the TOE provision of Chapter 33, Title 38, United States Code, have been met. 38 U.S.C. §§ 3011, 3319, 3695 (2018); 38 C.F.R. §§ 21.4020, 21.9500-21.9770 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from October 1991 to August 2001 and from May 2003 to November 2014. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2020 decision of the Department of Veterans Affairs (VA) Regional Office. The Veteran timely appealed this decision to the Board by filing a Notice of Disagreement (NOD) on VA Form 10182 in May 2020 and he requested the AMA Direct Review option. As such, the Board's decision will be based on a review of the evidence of record at the time of the agency of original jurisdiction's (AOJ's) April 2020 decision. 38 C.F.R. § 20.301. This appeal involves the Veteran's initial application for and receipt of Chapter 30 benefits and his subsequent election of Chapter 33 benefits. The provisions for Chapter 30 benefits are codified at 38 U.S.C. §§ 3001-3035 with implementing regulations found at 38 C.F.R. §§ 21.7000-21.7320, and they pertain to individuals who first entered active duty after June 30, 1985. The provisions for Chapter 33 benefits are codified at 38 U.S.C. §§ 3301-3327 with implementing regulations found at 38 C.F.R. §§ 21.9500-21.9770, and they pertain to individuals with active service on or after September 11, 2001. The transfer of entitlement (TOE) provision under Chapter 33 permits an individual to elect to transfer to one or more dependents a portion of such individual's entitlement to education assistance benefits. 38 U.S.C. § 3319; 38 C.F.R. § 21.9570. But for certain exceptions, benefits awarded under Chapters 30 and 33 entitle the recipient to 36 months of educational assistance. 38 U.S.C. §§ 3013(a)(1), 3312(a). Notably, the law also provides a limit on educational assistance under two or more programs. In this regard, the aggregate period for which any person may receive assistance under two or more education programs including Chapters 30 and 33 may not exceed 48 months (or the part-time equivalent). 38 U.S.C. § 3695(a); 38 C.F.R. § 21.4020(a). The Veteran in this appeal reported in the May 2020 NOD that he signed up for Chapter 30 benefits in 1991 and that he used those benefits following his service discharge in August 2001 to pursue Bachelor's, Master's, and Doctorate degrees. 38 U.S.C. § 3011(a). He also reported that it was his understanding that he had exhausted his Chapter 30 benefits. Information from VADIR (Veterans Affairs and Department of Defense Identity Repository) in April 2020 shows that the Veteran was a participant for Chapter 30 benefits and that on November 8, 2010, he requested benefits for his two dependent children under Chapter 33 which was approved. The AOJ informed the Veteran in writing in April 2020 that in accordance with Section 3327 (h) of Title 38, United States Code, VA made an alternative election on his behalf to relinquish Chapter 30 benefits effective November 8, 2010, which was the date that he requested with his service department to transfer Post-9/11 GI Bill benefits to his dependent children. The AOJ informed the Veteran that this was done because a valid election had not been provided to VA. He was also informed that he had 30 days to disagree with this action or the election would become irrevocable. In a separate letter dated in April 2020, the AOJ informed the Veteran that his dependents had been awarded Chapter 33 benefits under the TOE provision. VA acknowledged that the Veteran had requested that 36 months be transferred to his dependents but informed him that he only had one month of remaining benefits under Chapter 30, and he was thus limited to one month of Chapter 33 benefits to transfer to his dependents. In this regard, pursuant to 38 C.F.R. § 21.9550(b)(1), if an individual is eligible for benefits under Chapter 30, and he or she uses some of that entitlement before irrevocably electing to receive Chapter 33 benefits in lieu of benefits under Chapter 30, that individual may be awarded the equivalent of the entitlement that remained unused under Chapter 30. The Veteran disagrees with the AOJs determination by asserting, as noted, that he thought that he had exhausted his Chapter 30 benefits when he applied for Chapter 33 benefits. He also explained in the May 2020 NOD that he expected to receive the full amount (36 months) given as a separate benefit due to his different period of service and capacity. He made note of the fact that he continued his service for an extra four years to ensure that his child would receive the full benefit. Pertinent to this appeal is the U.S. Court of Appeals for the Federal Circuit (Court) recently issued precedential case in Rudisill v. McDonough, No. 20-1637 (Fed. Cir. 2021). In this case, the Court held that the Veteran was not limited to the unused portion of his 36-month entitlement under Chapter 30 when he elected Chapter 33 benefits in lieu of Chapter 30 benefits, but rather he was entitled to the aggregate 48-month cap of benefits based on his multiple periods of qualifying service. See also Bo v. Wilkie, 31 Vet. App. 321, 324 (2019). By applying the Court's holding above to this appeal, the Veteran is not limited to the total of 36 months of education benefits under Chapter 30 since he has multiple periods of qualifying service. However, he is subject to the aggregate 48-month cap of benefits based on his multiple periods of qualifying service under different programs. 38 U.S.C. § 3695(a); 38 C.F.R. § 21.4020(a). Thus, although he asserts entitlement to an additional 36 months under Chapter 33, he can receive no more than an aggregate 48 months of education benefits regardless of whether he had unused Chapter 30 benefits at the time of his Chapter 33 benefit election. Id. Accordingly, he is entitled to the one month of unused Chapter 30 benefits in addition to 12 months of Chapter 33 benefits for an additional total 13 months of benefits. Kristin Haddock 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.