Citation Nr: 21015976 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 15-01 132 DATE: March 18, 2021 ORDER Entitlement to additional Department of Veterans Affairs (VA) educational assistance benefits in excess of 4 days as of August 23, 2014, under Chapter 33, Title 38, United States Code (known as the Post-9/11 GI Bill), is denied. FINDING OF FACT The Veteran is not entitled to more than the maximum aggregate period of 48 months of educational assistance under Chapters 30 and 33. CONCLUSION OF LAW The criteria for entitlement to additional Chapter 33 education benefits in excess of 4 days as of August 23, 2014 are not met. 38 U.S.C. §§ 3013, 3695; 38 C.F.R. §§ 21.4020, 21.9550. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1999 to May 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that the Veteran had only 4 days of full-time Post-9/11 GI Bill benefits remaining. The Veteran’s claim was remanded by the Board in September 2020, and again in February 2021. In response to these remands, the agency of original jurisdiction (AOJ) verified that the Veteran received 38 months and 13 days of Chapter 30 benefits prior to applying for Chapter 33 benefits. Additionally, a November 2020 supplemental statement of the case (SSOC) provided an accounting of the Chapter 30 benefits the Veteran had received. It also provided an accounting of the Chapter 33 benefits the Veteran had received as of August 23, 2014. The Board is satisfied that there has been substantial compliance with the prior remands and that the case may move forward without prejudice to the Veteran. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the instant case, the Veteran made an irrevocable election, effective July 20, 2010, to receive benefits under the Post-9/11 GI Bill in lieu of receiving benefits under Chapter 30, Title 38, United States Code (the Montgomery GI Bill-Active Duty (MGIB-AD)). Although it was initially determined that the Veteran had 36 months and 0 days of full-time Chapter 33 educational assistance benefits remaining, it was later discovered that the Veteran had previously used 38 months and 13 days of Chapter 30 benefits. It was thus indicated that his Chapter 33 entitlement was reduced to 9 months and 17 days. The record shows that the Veteran received Chapter 33 educational assistance benefits while enrolled in a juris doctor program at Golden Gate University School of Law from August 16, 2010 through July 22, 2011. The Veteran later sought to use educational assistance benefits for a juris doctor program at John K. Kennedy University College of Law. It was then that the error regarding his prior use of Chapter 30 benefits was discovered. On August 23, 2014, the RO issued a Certificate of Eligibility certifying that the Veteran was entitled to Post-9/11 GI Bill benefits to pursue a juris doctor degree at John F. Kennedy University. It was stated, however, that the Veteran then had only 4 days of full-time benefits remaining. On his September 2014 notice of disagreement, the Veteran pointed out that the miscalculation in the amount of his Chapter 33 educational benefits was made by VA. He asserted that he was not complicit in causing the calculation mistake made by VA. He pointed out the he relied on the VA verification in February 2011 that he had 27 months and 14 days of Chapter 33 benefits at his disposal. He said that he made financial and employment decisions based on the VA verification. He reported that the withdrawal of the Chapter 33 benefits caused him significant financial strain. He stated that the VA error, if not redressed, would cause severe hardship for him and his family. He felt that it was the duty of the VA to honor the original award letter and not cause him undue punishment and stress for acting on the GI Bill information as originally presented to him. At his March 2018 hearing the Veteran stated that he did not dispute the calculation that he only had four days left of Chapter 33 benefits remaining. He reported that when he received the VA letter saying that he had 36 months of Chapter 33 eligibility, he called up VA to verify, because he had been under the impression that at best it would be 12 months. He felt that he had been misled by VA and pointed out that he had relied on that information in deciding whether to return to school. The Veteran’s representative noted that the Veteran had acted on his good faith trust on VA and felt that it is the duty of VA to honor the original award letter. Generally, an individual entitled to basic educational assistance under Chapters 30 and 33 is entitled to 36 months of educational assistance benefits. 38 U.S.C. § 3013(a)(1); 38 C.F.R. §§ 21.7072, 21.9550(a). Although an individual may be entitled to benefits under various education programs, there is a limit as to the total aggregate period for which any person may receive educational assistance under two or more educational programs. The statutes and regulations limit such educational assistance to no more than 48 months in the aggregate. 38 U.S.C. § 3695; 38 C.F.R. § 21.4020. (Continued on the next page)   The record clearly shows that the Veteran used 38 months and 13 days of Chapter 30 benefits. Consequently, due to the 48 months educational assistance aggregate limit, the Veteran was eligible to at most 9 months and 17 days of Chapter 33 educational benefits (subtracting 38 months and 13 days from 48 months results in 9 months and 17 days remaining). By the time the AOJ discovered that the Veteran had previously used over 38 months of Chapter 30 benefits, the Veteran had already used 9 months and 13 days of his Chapter 33 benefits. Accordingly, as of August 23, 2014 the Veteran only had 4 more days of Chapter 33 benefits at his disposal to reach the 48 month aggregate educational assistance limit. As noted above, the Veteran does not dispute that as of August 23, 2014, he had used up all but 4 days of his maximum 48 months of educational benefits. Rather the Veteran asserts that he relied on the VA statements that he had 36 months of Chapter 33 benefits available to him to use and that therefore VA should provide him with 36 months of Chapter 33 benefits as originally promised. The Board acknowledges the Veteran’s contentions that he was initially informed by VA that he had 36 months of Chapter 33 benefits at his disposal and that he was later informed by a February 2011 letter that he had 27 months and 14 days of Chapter 33 benefits at his disposal as of May 11, 2011. The Board notes that the Veteran stated at his hearing that he was surprised when VA told him that, and that he was under the impression that he would be entitled to at most 12 months of Chapter 33 benefits. This indicates that even though he relied on the VA faulty information he had some inkling that the information was not correct. Regardless, even if he had had no idea that the information was incorrect, and even if he relied on the July 2010 VA certificate of eligibility that informed him that he had 36 months of Chapter 33 educational benefits at his disposal as well as later incorrect information he received from VA, to his detriment, the Board is unable to grant his claim. The fact that the Veteran was provided inaccurate information by Government employees and that he determinately relied upon this information, does not allow the Board to provide equitable relief. The Board has no authority to grant these benefits on an equitable basis. See Harvey v. Brown, 6 Vet. App. 416 (1994). 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). Accordingly, entitlement to additional educational assistance benefits in excess of 4 days as of August 23, 2014, under Chapter 33, Title 38, United States Code, is denied. K. Parakkal 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.