Citation Nr: 21020972 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 15-35 205 DATE: April 8, 2021 ORDER Entitlement to an effective date earlier than August 28, 2012, for the grant of on-the-job training program education benefits is denied. FINDINGS OF FACT 1. On August 28, 2013, the Agency of Original Jurisdiction (AOJ) received the Veteran’s electronic Application for VA Education Benefits (VA Form 22-1990) for 38 U.S.C. Chapter 33 (Post-9/11 GI Bill or Chapter 33) benefits under the apprenticeship or on-the-job training program with the Northern California District Council of Laborers Joint Apprenticeship and Training Committee (JATC). 2. The Veteran’s participation in the on-the-job training program with the Northern California District Council of Laborers JATC began on July 1, 2011. 3. VA did not receive a formal or informal claim for education benefits for the apprenticeship or on-the-job training program under the Post-9/11 GI Bill prior to August 28, 2013. 4. By August 28, 2012, the Veteran had completed one year, one month, and 27 days of apprenticeship or on-the-job training with the Northern California District Council of Laborers JATC; thus, the AOJ properly determined that he was entitled to on-the-job training program education benefits under the Post-9/11 GI Bill at the Step 3 percentage level. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than August 28, 2012, for the grant of on-the-job training program education benefits have not been met. 38 U.S.C. § 3313; 38 C.F.R. § 21.9640. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 2006 to October 2010. In April 2017, the Veteran provided testimony in a Board video conference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. This case was previously before the Board in December 2018, at which time the Board remanded it to: obtain and associate with the claims file any and all claims for VA education benefits, to include the August 2013 claim; undertake appropriate efforts to ascertain whether a claim for benefits was received from the Veteran in 2012; and, to issue a supplemental statement of the case (SSOC) if the benefit sought on appeal was denied. The record shows that the AOJ undertook appropriate efforts and obtained the pertinent records, including the August 2013 claim for Post-9/11 GI Bill benefits, and issued a November 2020 SSOC denying the claim on appeal. Thus, there was substantial compliance with the Board’s December 2018 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran is seeking an earlier effective date for the grant of his Post 9/11 GI Bill on-the-job training program education benefits. Specifically, he is seeking benefits from the start date of his on-the-job training program, which began on July 1, 2011. In numerous statements throughout the appeal, including in the April 2017 Board hearing testimony, the Veteran asserted that he first started contacting VA in July 2011, which was at the same time he enrolled in his on-the-job training program. He contended that after he was misinformed by VA personnel on several occasions regarding how to file the claim and that after he finally received the correct information as to how to file for benefits, he submitted his claim paperwork in 2012. The Post-9/11 GI Bill program will pay a stipend to eligible veterans for participation in on-the-job-training and apprenticeship programs. Under the Post-9/11 GI Bill, an eligible veteran is awarded a rate equal to 100 percent of his applicable monthly housing allowance (MHA) during the first six months of on-the-job training, 80 percent of the applicable MHA during the second six months of training, 60 percent of the applicable MHA during the third six months of training, 40 percent of the applicable MHA during the fourth six months of training, and 20 percent of the applicable MHA during the remainder of the training. Post-9/11 GI Bill recipients may also receive a monthly stipend for books and supplies. See 38 U.S.C. § 3313(g). The law regarding effective dates provides that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). This statutory provision is implemented by a VA regulation, which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. For claims specifically reopened on the basis of new and material evidence after a final disallowance under 38 C.F.R. § 3.156(a), the effective date is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term “claim” or “application” means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). VA must look to all communications from a claimant that may be interpreted as applications or claims – formal and informal – for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. See Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). For claims received on or after March 24, 2015, VA amended its regulations governing how to file a claim. The effect of the amendment was to standardize the process of filing claims, as well as the forms accepted, in order to increase the efficiency, accuracy, and timeliness of claims processing, and to eliminate the concept of informal claims. See 38 C.F.R. § 3.155; 79 Fed. Reg. 57660-01. However, prior to the effective date of the amendment, VA law provided that any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. Even with respect to informal claims, such informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (for claims received prior to March 24, 2015). As is pertinent to education cases, when an eligible veteran or service member enters into training, the commencing date of the award of educational assistance for the program of education the service member is pursuing, is the latest of: (1) the date of certification of the educational institution; (2) one year before the date of claim; (3) the effective date of the approval of the course; or (4) one year before the date VA receives approval notice. 38 C.F.R. § 21.7131(a). For purposes of determining the commencing date of an award of that educational assistance, the date of claim is the date on which a valid claim or application for educational assistance is considered to have been filed with VA. If an informal claim is filed and VA receives a formal claim within one year of the date VA requested it, the date of claim is the date VA received the informal claim. If a formal claim is filed, the date of claim is the date VA received the formal claim. If a formal claim itself is abandoned and a new formal or informal claim is filed, the date of claim is as provided for above, as appropriate. 38 C.F.R. § 21.1029(b). The facts are not in dispute. The record shows that the Veteran began an apprenticeship or on-the-job training program with the Northern California District Council of Laborers JATC on July 1, 2011 to become a construction craft laborer. The record also shows that on August 28, 2013, the AOJ received the Veteran’s electronic VA Form 22-1990, in which he elected to receive Chapter 33 benefits in lieu of 38 U.S.C. Chapter 30 educational assistance benefits for the apprenticeship program. The Board notes that this VA Form 22-1990 does not have a date stamp and is not signed and dated by the Veteran. However, as was explained in the November 2020 SSOC, as well as in an undated Report of Contact form (VA Form 119) by a VA education appeals team leader, the VA Form 22-1990 would not have a signature or a date stamp on the application because it was submitted electronically. Furthermore, the team leader explained that VA uses the date that the VA Form 22-1990 is placed in a veteran’s education folder as the date of receipt, which is created when VA receives the first application or intent to file from a veteran. In response to the August 28, 2013, application for VA education benefits, the AOJ sent the Veteran a certificate of eligibility in September 2013 explaining what benefits were available to the Veteran. This letter informed him that by law, VA cannot pay for training he took more than one year before VA received his claim for the current program. Additionally, the September 2013 letter further informed him that VA could only pay him education benefits starting on August 28, 2012, even though his training began on July 1, 2011. Thereafter, the record shows that on several occasions in 2014, the Veteran and his employer provided VA with numerous pieces of correspondence, including certifications of training time and the apprenticeship agreement, which confirmed that the Veteran’s apprenticeship or on-the-job training program began on July 1, 2011. In the April 2015 decision on appeal, the AOJ determined that the Veteran was entitled to receive Post-9/11 GI Bill benefits for the MHA and books and supplies from August 28, 2012, at the 60 percent rate, or Step level 3. Specifically, the April 2015 letter noted that although the Veteran’s application for VA education benefits was received on August 28, 2013, which meant that VA was only able to pay for education benefits up to one year prior, or August 28, 2012, the Veteran began his training in July 2011, and thus, the Step beginning date of August 2012 meant that he was entitled to receive benefits at the Step level 3 percentage. The letter explained that the Step level percentage is a rate used to calculate the maximum monthly housing award, and that this percentage starts at 100 percent and is decreased by 20 percent for each subsequent step, or six-month period. See 38 U.S.C. § 3313(g). Accordingly, the letter noted that from August 28, 2012, until December 31, 2012, the Veteran’s Step level was 3, which meant he could receive benefits at the 60 percent benefit level. From January 1, 2013, to June 30, 2013, his Step level was 4 and he was entitled to benefits at the 40 percent benefit level. Thereafter, beginning on July 1, 2013, the Veteran was entitled to benefits at the Step level 5, or 20 percent level. In the May 2015 Notice of Disagreement (NOD), the Veteran disagreed with the 60 percent benefit level initially-assigned for the on-the-job training program benefits. He acknowledged that his paperwork was processed and filed late; however, he stated that it was not his fault that he filed the paperwork late. He asserted that VA personnel would not give him a straight answer on how to qualify for benefits. He also noted that he was asked on several occasions to fill out paperwork that was not relevant and that each person he spoke with at VA only addressed one error at a time and that eventually all of the issues were worked out. He stated there was no communication from VA or his school or if there was communication, it was misleading or false. He asserted that VA staff were not helpful in this process. He stated that he deserved Post-9/11 GI Bill benefits at the 100 percent benefit level due to his service. The Veteran made very similar contentions in the September 2015 Substantive Appeal to the Board (VA Form 9) and during the April 2017 Board hearing. Specifically, during the hearing, the Veteran described the process for applying for these on-the-job training benefits as confusing, protracted, and burdensome. He provided details regarding his attempts to get the correct information from VA personnel and his school as to which forms he was required to submit and how to submit them. He also testified that it took a very long time for him to figure out how eligibility for these benefits worked. He stated that he called VA in 2011 to figure out how to qualify for benefits and that he submitted the paperwork to VA in mid- or late 2012 for the apprenticeship or on-the-job training benefits. Given this evidence, the Board finds that an effective date earlier than August 28, 2012, for educational assistance benefits under the Post-9/11 GI Bill program for on-the-job training with the Northern California District Council of Laborers JATC is not warranted. The record, including the Veteran’s statements noted in the May 2015 NOD, the September 2015 VA Form 9, and the April 2017 Board hearing, shows that there was a delay in his filing a claim for the apprenticeship or on-the-job training benefits. While the Veteran asserted that he filed the paperwork for these benefits in mid- to late 2012 due to misinformation or lack of assistance from VA personnel, a thorough review of the record does not show that VA received any formal or informal claim for education benefits for the apprenticeship or on-the-job training program under the Post-9/11 GI Bill prior to August 28, 2013. Specifically, while the Board has considered the Veteran’s statements that he spoke with various VA personnel regarding eligibility for education benefits, the claims file does not contain any communication in writing prior to the August 28, 2013, VA Form 22-1990 requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p). Accordingly, the record shows that even though the Veteran participated in the on-the-job training program since July 1, 2011, he did not file a claim for education benefits until August 28, 2013. Thus, the AOJ granted the Chapter 33 education benefits one year prior to the date of application, or August 28, 2012. See 38 C.F.R. § 21.7131(a)(2). The Board is sympathetic to the Veteran’s contentions that it was not his fault that the application process, including any lack of or incorrect information from VA personnel, delayed his filing of a claim for VA educational assistance benefits until August 28, 2013. Unfortunately, VA is not liable for the Veteran’s reliance on said erroneous information dispensed by VA employees. See Harvey v. Brown, 6 Vet. App. 416, 424 (1994). The United States Court of Appeals for Veterans Claims (Court) has held that inaccurate advice does not create any legal right to benefits where such benefits are otherwise precluded. See Shields v. Brown, 8 Vet. App. 346, 351 (1995). Likewise, the Court has held that erroneous advice given by a government employee cannot be used to estop the government from denying benefits. See McTighe v. Brown, 7 Vet. App. 29, 30 (1994). Furthermore, the Board must find that the Veteran was paid at the appropriate Step and monthly rate for on-the-job training benefits, including for the MHA and books and supplies, beginning on August 28, 2012. Specifically, the record shows that by August 28, 2012, the Veteran had completed one year, one month, and 27 days of apprenticeship or on-the-job training with the Northern California District Council of Laborers JATC. Thus, the AOJ properly determined that the he was entitled to on-the-job training program education benefits under the Post-9/11 GI Bill at the Step 3 percentage level, or 60 percent, as he was in his third six-month period of training. While the Board is, again, sympathetic to the Veteran’s situation, it is unable to grant the benefits sought. Entitlement to an effective date earlier than August 28, 2012, for educational assistance benefits under the Post-9/11 GI Bill for the on-the-job training with the Northern California District Council of Laborers JATC is denied because the AOJ has already assigned the earliest possible effective date and monthly amount provided by law. Where the law, rather than the facts, is dispositive, the benefit of the doubt provisions as set forth in 38 U.S.C. § 5107(b) do not apply. See Sabonis v. Brown, 6 Vet. App. 426 (1994). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hodzic, 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.