Citation Nr: 21009194 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 17-17 259A DATE: February 19, 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 June 2013 to December 2016. 2. In January 2016, the Veteran applied for Montgomery GI Bill (Chapter 30) education benefits; Chapter 30 benefits were granted in February 2016. 3. The Veteran applied for Post-9/11 GI Bill education benefits in March 2016. 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 in the U.S. Army from June 2013 to December 2016. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to Post-9/11 GI Bill benefits. The Veteran appealed that decision. A review of the claims file shows that the Veteran’s April 2017 VA Form 9 for the issue on appeal was received almost six months after his October 2016 statement of the case (SOC); therefore, his substantive appeal was not timely filed. However, in March 2020, the Veteran reported that he had been homeless for the last five years, that he had been using a friend’s address to receive mail, and that he had not received the SOC until after the deadline by which he had to timely submit the VA Form 9. In a March 2020 administrative decision, the RO found that the evidence established good cause for the Veteran’s inability to submit VA Form 9 within the 60-day time limitation. See 38 C.F.R. § 3.109(b) (time limits within which claimants and beneficiaries are required to act to perfect a claim or challenge an adverse VA decision may be extended for good cause shown). Accordingly, as good cause has been found, the Veteran’s appeal has been perfected and is properly before the Board. A Board hearing was held in January 2021. A transcript is of record. Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. With regard to the appeal for educational assistance benefits, the provisions of the VCAA and the comparable educational assistance notice and assist provisions have no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002); see also Smith v. Gober, 14 Vet. App. 227, 230 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 05-2004. Analysis Entitlement to educational assistance benefits under the Post-9/11 GI Bill The Veteran is seeking Post-9/11 GI Bill benefits. The Veteran described that in January 2015, he initially received assistance from a VA school representative, R.C., regarding his admission into graduate school as well as with obtaining an initial $10,000 federal student aid school loan. After exhausting those funds, the Veteran explained that he spoke with R.C. to use his GI Bill to pay for his education. He indicated that he specifically noted to R.C. his desire to use the Post-9/11 GI Bill for law school, because it would afford him the most benefits. However, the Veteran said that R.C. told him that he would not be able to use the Post-9/11 GI Bill for housing and books, because he was still on active duty. Instead, R.C. allegedly counseled the Veteran to use his Montgomery GI Bill benefits. The Veteran claims he was told by R.C. that he could switch and use the Post-9/11 GI Bill after he left active duty. The Veteran said that he applied for Montgomery GI Bill benefits, but he said he did not receive the amount of benefits he was expected. When the Veteran’s application for Post-9/11 GI Bill benefits was denied, he said that he relied on the information he received from R.C. that he could switch from using his Montgomery GI Bill benefits. Based on his reliance on that misinformation, the Veteran contends that he should be able to use the Post-9/11 GI Bill benefits for his education. See September 2016 Notice of Disagreement, May 2017 VA Form 9, and January 2021 Board hearing transcript. A careful review of the record shows that in January 2016, the Veteran submitted an Application for VA Education Benefits (VA Form 22-1990) for Montgomery GI Bill benefits to pursue a Masters degree in Public Administration at Grand Canyon University. In a February 2016 Certificate of Eligibility, the Veteran was awarded Montgomery GI Bill benefits. Enrollment certification forms in February 2016 and April 2016 (VA Form 22-1999) show that the Veteran was enrolled in academic terms at Grand Canyon University from February 2016 to June 2016 using his Montgomery GI Bill benefits. In March 2016, the Veteran submitted another Application for VA Education Benefits (VA Form 22-1990), on which he indicated that he was seeking Chapter 33 benefits in lieu of Chapter 30 benefits to use towards his Masters degree in Public Administration at Grand Canyon University. In a March 2016 VA 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 on June 10, 2013. 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 June 2013 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 June 2013. The Board has carefully considered the Veteran's contention that he was informed that he could switch between the Chapter 30 and 33 programs and that the VA's application for educational benefits (VA Form 22-1990) advises applicants that by electing Chapter 33 in lieu of Chapter 30, their months of entitlement under Chapter 33 will be limited to the number of month of entitlement remaining under Chapter 30 on the effective date of their election. The law does provide that an individual who meets the minimum service requirements for basic eligibility for Chapter 33 educational assistance, and who is eligible for educational assistance under Chapter 30, may receive Chapter 33 educational assistance if he/she makes an irrevocable election to receive benefits under Chapter 33 in lieu of receiving such benefits under Chapter 30. 38 C.F.R. § 21.9520(c)(1). However, that is unfortunately not an option in situations such as the Veteran's, where the 38 U.S.C. § 3322(h) prohibition applies to determinations of eligibility based upon the same period of service. The Board has also considered the Veteran's contentions that he was advised by his VA school representative that he could change education programs upon his discharge. 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 allegedly given incorrect information 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); McTighe v. Brown, 7 Vet. App. 29, 30 (1994) (holding that erroneous advice given by a government employee cannot be used to estop the government from denying benefits). 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). Accordingly, because the Veteran's period of service beginning in June 2013 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. Therefore, the Veteran’s claim for educational assistance benefits under the Post-9/11 GI Bill is denied. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Journet Shaw, 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.