Citation Nr: 21006162 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 16-49 661 DATE: February 3, 2021 ORDER An overpayment of Chapter 30, Title 38, United States Code educational benefits (Montgomery GI Bill (MGIB)) in the amount of $28,027.92 was properly created, and the appeal is denied. FINDINGS OF FACT 1. In March 2013, the Department of Defense (DoD) approved the Veteran’s application for the transfer of entitlement of Chapter 33 (Post-9/11 GI Bill) educational benefits program. 2. Subsequently, the Veteran received $28,027.92 of Chapter 30 benefits to which he was not entitled. 3. There was fault on the part of both VA and the Veteran in creation of the overpayment of Chapter 30 educational assistance benefits in the amount of $28,027.92; this was not sole VA error. CONCLUSION OF LAW The debt created by the overpayment of Chapter 30 educational assistance benefits in the amount of $28,027.92 is valid. 38 U.S.C. § 3685; 38 C.F.R. § 21.7144. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1995 to December 2016. The Veteran’s claim was remanded by the Board in November 2019 in order to obtain additional documentation. In March 2020, the agency of original jurisdiction (AOJ) issued a supplemental statement of the case (SSOC) explaining that the requested documents did not exist. The SSOC noted that he had applied for Chapter 33 education benefits on a Department of Defense website in 2013. Although documentation of this application does not exist, the AOJ has documented the acknowledgments that are part of the application and he has verified that he filed such an application in 2013. Accordingly, his claim can be decided based on the evidence already of record. The Veteran has appealed the validity of an overpayment of Chapter 30 educational benefits in the amount of $28,027.92. The Board notes that the mathematical calculation of the overpayment amount is not in dispute. The Board further notes that a significant portion of the overpayment has been offset by applying the Veteran’s Chapter 33 educational benefits against the debt. But, as explained below, the Board has determined that the overpayment of Chapter 30 educational benefits in the original amount of $28,027.92 was properly created. The record reveals that the Veteran applied for, and received, Chapter 30 educational benefits from February 2014 until July 2016. In June 2016, he applied for Chapter 33 educational benefits, stating that he wanted to receive these benefits once he exhausted his Chapter 30 educational benefits. VA contacted the DoD to verify his Chapter 33 eligibility, and in July 2016 DoD informed VA that he already had revoked his Chapter 30 eligibility and had been awarded Chapter 33 eligibility as of March 23, 2013. The record shows that, in February 2013, the Veteran applied for transfer of Chapter 33 benefits to dependents. On March 23, 2013, the DoD approved his request. The consequence of his application for Chapter 33 transfer of educational benefits eligibility is that he elected Chapter 33 benefits in lieu of Chapter 30 benefits, and this election was irrevocable. 38 C.F.R. § 21.9520(c)(1)(i).   Consequently, the Veteran was not entitled to the Chapter 30 educational benefits that he received after March 23, 2013, as he had irrevocably given up his Chapter 30 eligibility as of that date. On his October 2016 substantive appeal the Veteran stated that, although he had applied (in 2013) for transfer of educational benefits from Chapter 30 to Chapter 33, he was advised by VA educational staff that he could continue to use his Chapter 30 benefits until he exhausted them, at which time he could transfer to Chapter 33. He stated that, at that time, he believed that his following the VA representative’s advice meant that his transfer request would be rescinded. He further stated that he kept in contact with the VA educational staff all along to track his eligibility balance and at no point was it brought to his attention that he was paid in error. During his June 2019 hearing, the Veteran asserted that the overpayment was not properly created (i.e., is an invalid debt). He said that his intentions were to use up his 36 months of Chapter 30 benefits and then switch over to Chapter 33 benefits. He asserted that he was properly entitled to start using his Chapter 30 benefits in March 2013. He stated that, when he applied to switch over to Chapter 33 benefits in June 2016, VA told him that he had not been entitled to the Chapter 30 benefits after all and that he had to pay them back. He disagreed and claimed that he was entitled to the Chapter 30 benefits he received. He maintained that the VA’s assertions that he had already revoked his eligibility to Chapter 30 benefits as of March 2013 is untrue. He asserted that the creation of the overpayment was due to VA error, not his. In order for the Board to determine that the overpayment was not properly created, it must be established that the Veteran was legally entitled to the benefits in question or, if there was no legal entitlement, then it must be shown that VA was solely responsible for the Veteran being erroneously paid benefits. Sole administrative error may be found to occur where the Veteran neither had knowledge of nor should have been aware of the erroneous award. Such error contemplates that neither the appellant’s actions nor his failure to act contributed to payment pursuant to an erroneous award. See Jordan v. Brown, 10 Vet. App. 171 (1997) (sole administrative error is not present if the payee knew, or should have known, that the payments were erroneous). Thus, a finding of sole administrative error requires not only error on the part of VA, but that the beneficiary is unaware that the payments were erroneous. The Veteran fully admits that he applied for Chapter 33 eligibility in February 2013. He asserts that his application for Chapter 33 eligibility at that time was rescinded based on what he was told by VA educational personnel at that time. He contends that, since he followed the advice of VA personnel and since VA approved his applications for Chapter 30 educational benefits thereafter, if there was any overpayment, it was error on the part of VA rather than him. In December 2016, the AOJ provided a list of the acknowledgments that an applicant for transfer of Chapter 33 benefits must make in their application. The acknowledgements included, “I understand that along with requesting this transfer and am currently eligible for one of the benefits described below, I am making an irrevocable decision to convert my eligibility from the MGIB (Chapter 30)… for eligibility under the Post-9/11 GI Bill.” The acknowledgements also included, “My election is irrevocable and may not be changed.” The Board recognizes there was error on the part of VA in approving the Veteran’s applications for Chapter 30 benefits for which he was not entitled. However, the Board does not find that there was sole, meaning exclusive, VA error. After submitting the February 2013 application for Chapter 33 benefits with the acknowledgements about irrevocability, the Veteran should have known that he was not entitled to Chapter 30 benefits and should not have applied for and accepted Chapter 30 benefits. With regards to his belief that he was able to rescind his application based on advice from VA education personnel, there are no documents in the claims file that verify his assertions of faulty VA advice. Regardless, VA is not bound by erroneous advice dispensed by its employees. Shields v. Brown, 8 Vet. App. 346, 351 (1995) (inaccurate advice does not create any legal right to benefits where such benefits are otherwise precluded); McTighe v. Brown, 7 Vet. App. 29, 30 (1994) (erroneous advice given by a government employee cannot be used to estop the government from denying benefits). Rather, the Board is bound to follow VA’s statutes and regulations and, under those statutes and regulations, has no authority to grant benefits on an equitable basis. See Owings v. Brown, 8 Vet. App. 17, 23 (1995) (even where VA misinforms a veteran regarding eligibility for benefits, the doctrine of equitable estoppel cannot be used to grant monetary benefits not authorized by statute), aff’d 86 F.3d 1178 (Fed.Cir.1996); see also McTighe, supra. As discussed, the Veteran was not legally entitled to the Chapter 30 benefits he received, and the overpayment was not due to sole VA error. Accordingly, the Board finds that the overpayment of Chapter 30 (MGIB) educational benefits in the amount of $28,027.92 was properly created, and the appeal is denied. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Jones, 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.