Citation Nr: 21009708 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-62 876 DATE: February 23, 2021 ORDER Entitlement to additional Department of Veterans Affairs (VA) educational assistance benefits in excess of 1 day under the Transfer of Entitlement provisions of Chapter 33, Title 38, United States Code (known as the Post-9/11 GI Bill) is denied. FINDING OF FACT The Veteran used 36 months of entitlement under Chapter 1606, Title 10, of the United States Code (known as the Montgomery GI Bill for Selected Reserves (MGIB-SR)) and 11 months and 29 days of entitlement under Chapter 30, Title 38, United States Code (known as the Montgomery GI Bill-Active Duty (MGIB-AD); he had 1 day of unused entitlement remaining under Chapter 30. CONCLUSION OF LAW The Veteran has no legal entitlement to transfer to daughter M.B. VA educational assistance benefits greater than 1 day, under the Transfer of Entitlement provisions of Chapter 33. 38 U.S.C. § 3319; 38 C.F.R. §§ 21.4020, 21.9550. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1998 to December 2003. He had additional service in the Army National Guard, which included a period of active duty for training from June 13, 1994, to July 29, 1994. This appeal to the Board of Veterans’ Appeals (Board) arose from a May 2017 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that the Veteran’s daughter M.B. was entitled to Chapter 33 educational assistance benefits, but that she had only 1 day of transferred benefits to use. The Veteran disagreed with that determination, and this appeal ensued. In January 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. Additional Entitlement to Chapter 33 Educational Assistance Benefits A review of the record shows that the Veteran originally had 36 months of entitlement to VA educational assistance benefits under Chapter 1606 (the MGIB-SR)) and that he used all 36 months of that entitlement. The Veteran then became entitlement to an additional 12 months of educational assistance benefits under Chapter 30 (the MGIB-AD). It was determined that the Veteran had used 11 months and 29 days of entitlement under Chapter 30. Notably, the Veteran does not argue that he himself did not use these benefits. The Veteran also does not dispute the AOJ’s calculation of total entitlement previously used by him. Rather, the Veteran asserts that he was approved to transferred 9 months of entitlement to his daughter M.B., and argues that his daughter should be able to fully utilize the 9 months of transferred entitlement. Relevant to the issue currently before the Board, laws administered by VA provide a limit on training under two or more programs. Specifically, the aggregate period for which any person may receive assistance under two or more of the following laws may not exceed 48 months (or the part-time equivalent): (1) Part VII or VIII, Veterans Regulations numbered 1(a), as amended; (2) Title II of the Veterans’ Readjustment Assistance Act of 1952; (3) The War Orphans’ Educational Assistance Act of 1956; (4) 38 U.S.C. chapters 30, 32, 33, 34, 35, and 36; (5) 10 U.S.C. chapters 106a, 1606, and 1607; (6) Section 903 of the Department of Defense Authorization Act, 1981; (7) The Hostage Relief Act of 1980; and (8) The Omnibus Diplomatic Security and Antiterrorism Act of 1986. 38 U.S.C. § 3695(a); 38 C.F.R. § 21.4020(a). Further, the law provides that an individual who, as of August 1, 2009, has used entitlement under 38 U.S.C. Chapter 30, but retains unused entitlement under that chapter, makes an irrevocable election to receive educational assistance under the provisions of 38 U.S.C. Chapter 33 in lieu of educational assistance under the provisions of Chapter 30, will be limited to one month (or partial month) of entitlement under Chapter 33 for each month (or partial month) of unused entitlement under Chapter 30 (including any months of Chapter 30 entitlement previously transferred to a dependent that the individual has revoked). 38 U.S.C. § 3327 (a)(1), (i); 38 C.F.R. § 21.9550 (b)(1). Additionally, an individual who is entitled to educational assistance under 38 U.S.C. Chapter 33 based on his own active duty service, and who is approved by a service department to transfer entitlement, may transfer up to a total of 36 months of his entitlement to a dependent (or among dependents). 38 U.S.C. § 3319; 38 C.F.R. § 21.9570. Here, the evidence shows that, effective August 12, 2015, the Veteran transferred entitlement of his remaining VA educational assistance benefits to his dependent children. See 38 U.S.C. § 3319; 38 C.F.R. § 21.9570 (providing that an eligible individual who is approved by a service department to transfer entitlement, may transfer up to a total of 36 months of his or her entitlement to a dependent (or among dependents). In doing so, the Veteran made an irrevocable election to receive benefits under Chapter 33. See 38 C.F.R. § 21.9520(c)(2) (providing that an individual may make an irrevocable election to receive benefits under Chapter 33 by properly completing VA Form 22-1990, submitting a transfer-of-entitlement designation under this chapter to the Department of Defense (DoD), or submitting a written statement that includes certain specified information). Although the Veteran elected to transfer 36 months of entitlement to his dependent children, to include 9 months of entitlement to his daughter M.B., at the time of this election, the Veteran had remaining only 1 day of entitlement left to transfer. This is so because the Veteran had exhausted all but one day of his Chapter 30 entitlement and had previously used 36 months of entitlement under Chapter 36. Again, the Board points out that the Veteran himself does not dispute his calculated use of Chapter 1606 and Chapter 30 entitlement (36 months and 11 months and 29 days, respectively). Thus, he had remaining only 1 day of benefits available to transfer. Accordingly, because an individual may not receive more than 48 months of educational assistance under two or more educational programs, the maximum amount of educational assistance benefits available to transfer to daughter M.B. was 1 day. 38 U.S.C. § 3695(a); 38 C.F.R. § 21.4020(a). The Board understands the Veteran’s position, as it is clear that DoD approved the transfer 9 months of Chapter 33 entitlement to M.B. Unfortunately, however, DoD is responsible only for approving requests to transfer entitlement of Chapter 33 benefits and is not tasked with notifying veterans of their remaining amount of entitlement or verifying that the amounts requested to transfer are, indeed, available. The Board has also considered the equitable arguments of promissory estoppel and detrimental reliance raised by the Veteran’s representative during the January 2021 hearing. While sympathetic to the Veteran’s position in this case, the Board is bound by the law and is without 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); Harvey v. Brown, 6 Vet. App. 416, 425 (1994); see also 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). The Board is regretful that it cannot provide a more favorable outcome. However, the applicable laws and regulations dictate that there is no legal basis on which the Veteran’s claim can be granted. This is so because the Veteran is limited to no more than 48 months of total educational benefits, to include that which he can transfer to his dependents. As the law and not the evidence is dispositive in this case, the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Neilson, 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.