Citation Nr: 21070800 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 17-35 765 DATE: November 26, 2021 ORDER Entitlement to educational assistance benefits under 38 U.S.C. Chapter 33 (Post-9/11 GI Bill) is denied. FINDINGS OF FACT 1. The Veteran served on active duty from March 2012 to March 2017. 2. In November 2014, the Veteran applied for Montgomery GI Bill (Chapter 30) education benefits; these benefits were utilized from January 2015 to April 2015. 3. The Veteran applied for Post-9/11 GI Bill education benefits in March 2017. CONCLUSION OF LAW The criteria for entitlement to educational assistance benefits under 38 U.S.C. Chapter 33 (Post-9/11 GI Bill) have not been met. 38 U.S.C. §§ 3301, 3311, 3322; 38 C.F.R. §§ 21.9505, 21.9520. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 2012 to March 2017. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2017 decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in May 2021. A transcript of the hearing is of record. Entitlement to educational assistance benefits under 38 U.S.C. Chapter 33 (Post-9/11 GI Bill) is denied. The Veteran is seeking Post-9/11 GI Bill benefits. He testified that he was never advised that he would not be able to use Post-9/11 GI Bill benefits after service if he utilized Chapter 30 (Montgomery GI Bill) benefits during active duty. See May 2021 Board Hearing Transcript. He further alleges that, as a result, he has suffered significant financial hardship. Review of the record shows that in November 2014, the Veteran submitted an application for VA Education Benefits (VA Form 22-1990) for Montgomery GI Bill benefits to pursue a Masters of Business Administration at California Baptist University. Enrollment certification forms (VA Form 22-1999) show that the Veteran was enrolled in academic terms from January 5, 2015 to March 1, 2015 and from March 2, 2015 to April 26, 2015 using his Montgomery GI Bill benefits. In March 2017, the Veteran submitted another VA Form 22-1990, on which he indicated that he was seeking Chapter 33 benefits in lieu of Chapter 30 benefits to use towards a Bachelor's of Science in Information Technology at the University of Phoenix. In a March 2017 decision, the RO explained to the Veteran that his claim for Post-9/11 GI Bill benefits was denied, because he had already elected to use another benefit for his active duty service beginning after August 2, 2011. The Post 9/11 GI Bill (Chapter 33) provides for VA educational assistance for members of the Armed Forces based on service after September 10, 2001. Here, there is no question that the Veteran had the requisite active duty after September 10, 2001, and thus meets the basic eligibility requirements for receipt of Chapter 33 educational assistance benefits. 38 U.S.C. § 3311; 38 C.F.R. § 21.9520(b). The law provides that individuals entitled to educational assistance benefits under Chapter 33 who are also eligible for educational assistance under Chapter 30, among other programs, may not receive assistance under two or more such programs concurrently, but shall elect (in such form and manner as the Secretary may prescribe) under which chapter or provisions to receive educational assistance. 38 U.S.C. § 3322(a). In addition, the law bars "duplication of eligibility" based on a single period of service that began on August 1, 2011, or later. In other words, service that began on August 1, 2011, or later cannot be credited towards both Chapter 30 benefits and Chapter 33 benefits. Specifically, the law provides that "[a]n individual with qualifying service in the Armed Forces that establishes eligibility on the part of such individual for educational assistance under [chapter 33], chapter 30 or 32 of this title, and chapter 1606 or 1607 of title 10, shall elect (in such form and manner as the Secretary may prescribe) under which authority such service is to be credited. 38 U.S.C. § 3322(h). This bar to duplication of eligibility based on a single event or period of service was due to amendments enacted by Congress, which were made effective August 1, 2011. See Post-9/11 Veterans Educational Assistance Improvements Act of 2010, Pub. L. No. 111-377, § 111, 124 Stat. 4106, 4120-21 (Jan. 4, 2011). Accordingly, because the Veteran's period of service beginning in March 2012 was used for eligibility and receipt of Chapter 30 educational assistance benefits, that same period cannot be used to establish separate entitlement to Chapter 33 educational assistance benefits. 38 U.S.C. § 3322(h)(1). In short, the bar to duplication of eligibility based on a single event or period of service was already in effect when the Veteran entered into active service in March 2012. The Board has carefully considered the Veteran's contention that he was not advised that if he utilized Chapter 30 benefits during active duty, that he would not be able to use Post 9-11 GI Bill benefits after service. Although the Board is sympathetic to the Veteran, the U.S. Court of Appeals for Veterans Claims has held that erroneous advice given by a government employee cannot be used to estop the government from denying benefits. Thus, the fact that the Veteran was not advised properly by VA personnel does not provide a basis on which the Board can grant the benefit the Veteran seeks. See Harvey v. Brown, 6 Vet. App. 416, 424 (1994); see also Shields v. Brown, 8 Vet. App. 346, 351 (1995) (holding that inaccurate advice does not create any legal right to benefits where such benefits are otherwise precluded). Rather, the Board is bound by the applicable law and regulations and is without authority to grant benefits on an equitable basis. 38 U.S.C. §§ 503, 7104(c); see also OPM v. Richmond, 496 U.S. 414, 434 (1990). (Continued on the next page) The Board has additionally considered the Veteran's contention that he will suffer significant financial hardship if he does not receive Chapter 33 benefits. In this regard, the Veteran has submitted a billing statement from the University of Phoenix for the terms from February 2017 to January 2018, indicating that the Veteran owes the University over $4,000. Although the Board does not doubt that the Veteran will experience financial hardship, regulations are binding on all who seek to come within their purview, "regardless of actual knowledge of what is in the [r]egulations or of the hardship resulting from innocent ignorance." Federal Crop Ins. Corp v. Merrill, 332 U.S. 380, 385 (1947). Accordingly, because the Veteran's period of service beginning in March 2012 was used to establish eligibility for receipt of Chapter 30 educational assistance benefits, that same period cannot be used to establish entitlement to Chapter 33 educational assistance benefits. 38 U.S.C. § 3322(h)(1). In other words, there is no basis under the law on which the Veteran can elect to receive Chapter 33 educational assistance benefits in lieu of receiving such benefits under Chapter 30 if he is not independently entitled to Chapter 33 benefits. Sabonis v. Brown, 6 Vet. App. 426 (1994). Therefore, the Veteran's claim for educational assistance benefits under the Post-9/11 GI Bill is denied. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Roya Bahrami, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED