Citation Nr: 21022661 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 18-03 978 DATE: April 19, 2021 ORDER Entitlement to payment of tuition and fees under 38 U.S.C. Chapter 33 (Post-9/11) in excess of $15,379.32 for the academic term beginning on July 24, 2017 and ending on October 6, 2017 is denied. Entitlement to more than 48 months of combined VA educational assistance benefits is denied. FINDINGS OF FACT 1. The Veteran was awarded 70 percent of the benefits payable under the Post-9/11 GI Bill program; the maximum amount payable for academic year August 1, 2016 to July 31, 2017 on a prorated basis was $15,379.32. 2. In an October 2017 VA letter, the Veteran was informed that she had zero dollars remaining out of her annual tuition and fees cap for the remainder of the academic year beginning August 1, 2016 and ending July 31, 2017. 3. The Veteran’s Fall term at the University of the Incarnate Word began on July 24, 2017. 4. Under VA law, the Veteran is not entitled to more than 48 months of VA educational assistance benefits under a combination of Chapter 1606 and Chapter 33 programs. CONCLUSIONS OF LAW 1. The criteria for entitlement to payment of tuition and fees under 38 U.S.C. Chapter 33 (Post-9/11 GI Bill) in excess of $15,379.32 for the academic term beginning on July 24, 2017 and ending on October 6, 2017 have not been met. 38 U.S.C. §§ 3301, 3311, 3313 (2012); 38 C.F.R. §§ 21.9520, 21.9620, 21.9640 (2020). 2. The criteria for entitlement to more than 48 months of combined VA educational assistance benefits have not been met. 38 U.S.C. § 3695 (2012); 38 C.F.R. § 21.4020 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army Reserves from July 2005 to March 2017. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2017 decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and D.G. testified before the undersigned Veterans Law Judge at a January 2021 Virtual hearing. A transcript of this hearing 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 The Veteran is seeking to use her remaining education benefits toward payment of tuition and fees for the academic term beginning on July 24, 2017 and ending on October 6, 2017 at the University of the Incarnate Word. She said that she was not informed until August 2017 that she was ineligible to receive her remaining benefits, because the academic term began on July 24, 2017, instead of August 1, 2017, when her benefits would have been available for the next academic year. She explained that she had worked with her VA school representative to ensure that she had education benefits through September 9, 2017, so she would be able to fund her first year in medical school. See November 2017 statement. At a January 2021 Board hearing, the Veteran testified that VA did not consider other options to provide the Veteran an opportunity to extend her available benefits or to provide her additional benefits. First, the Veteran explained that additional benefits were available to individuals in a STEM program, such as her program. Second, the Veteran asked that VA recalculate her benefits in a way to extend her entitlement. The Veteran described an example where benefits would be stopped for a term that ended on December 15 and restarted on January 1, but VA may continue to pay for that two-week break period. If VA recalculated the benefits to exclude that two-week period, the Veteran said that such a recalculation could result in an extension of benefits. In support of her claim, the Veteran submitted letters from the school’s Director of the Center for Veterans Affairs and Dean of the School of Osteopathic Medicine. In an October 2017 letter, the school’s Dean stated that the school was unaware that the school’s start date would have such a detrimental effect on any of their students. The school’s Dean explained that as a medical student, the Veteran was required to attend the orientation during the week of July 24, 2017 and that classes for the school, which differed from the rest of the University, formally began on July 31, 2017. The school’s Director of the Center for Veterans Affairs requested that VA reconsider the Veteran’s situation since the school’s Fall term began a week prior to the start of the August 1st new year and pro-rate her tuition payment from August 1st to September 9th when the Veteran’s Post-9/11 GI Bill benefit expired. Overall, the Veteran is seeking an exception from VA for payment of tuition and fees in order to apply her remaining benefits to the academic term beginning on July 24, 2017 due to extenuating circumstances. 1. Entitlement to payment of tuition and fees under the Post-9/11 GI Bill in excess of $15,379.32 for the academic term beginning on July 24, 2017 and ending on October 6, 2017 Based on a careful review of all the evidence, the Board finds that the Veteran’s claim for payment of tuition and fees under the Post-9/11 GI Bill in excess of $15,379.32 for the academic term beginning on July 24, 2017 and ending on October 6, 2017 is not warranted. There is no dispute that the Veteran has established eligibility for basic educational assistance under Chapter 33 and that she was entitled to receive 70 percent of the maximum amount payable for Post-9/11 GI Bill benefits. See November 2014 Certificate of Eligibility; see also 38 C.F.R. §§ 21.9520, 21.9640. Where, as here, an individual is attending a non-public or foreign institution of higher learning (IHL), the Post-9/11 GI Bill limits the amount payable for tuition and fees to the actual net costs by the institution of higher learning (reduced by specific factors) or the annual maximum for the academic year, whichever is less. 38 U.S.C. § 3313(c)(1)(ii); 38 C.F.R. §§ 21.9620, 21.9640. The term "academic year" is defined as the period of time beginning August 1st of each calendar year and ending July 31st of the subsequent calendar year. 38 C.F.R. § 21.9505. For the academic year from August 1, 2016 to July 31, 2017, the maximum tuition and fees payable for a private or foreign institution of higher learning was $21,970.46. https://www.benefits.va.gov/GIBILL/resources/benefits_resources/rates/ch33/ch33rates080116.asp. Based on the Veteran’s eligibility percentage of 70 percent, her prorated maximum amount payable for the academic year beginning August 1, 2016 and ending July 31, 2017 was $15,379.32. In September 2017, VA received an enrollment certification (VA Form 22-1999) from the University of the Incarnate Word for the academic term beginning July 24, 2017 to October 6, 2017 with tuition and fees in the amount of $23,821.00. In an October 2017 VA letter, VA explained to the Veteran that VA had issued payments to the Veteran in the amounts of $11,662.00, $518.00, $1,921.50, and $1,277.82 for the academic terms August 8, 2016 through December 9, 2016, from January 3, 2017 through May 5, 2017, from May 15, 2017 through June 2, 2017, and from June 5, 2017 through July 8, 2017, respectively, for a total of $15,379.32. Thus, she had zero dollars remaining out of her annual IHL private and/or foreign tuition and fees cap for the remainder of the academic year beginning August 1, 2016 and ending July 31, 2017. Because the Veteran’s term began during the academic year beginning August 1, 2016 and ending July 31, 2017, the payment of tuition and fees is limited to $15,379.32; therefore, by law, VA could not pay tuition and fees for that academic term as the maximum amount of tuition and fees had already been paid. Taking into consideration the Veteran’s assertion that VA did not consider whether her benefits could be recalculated in a way to afford her additional entitlement, the Board finds that there is no basis upon which to recalculate her benefits. The evidence shows that VA paid tuition and fees for only those academic terms certified by the University of Incarnate Word. There is no indication that VA paid any amounts of tuition and fees for a period of time that occurred during an extended “break” in the term, or any other period during which the Veteran was not enrolled. Notably, the Veteran did not specifically indicate which of her academic terms included an extended “break” for which tuition and fees were paid. Accordingly, the Board finds that the Veteran’s assertion that a recalculation of benefits should be made is also not warranted. The Board is sympathetic to the Veteran’s assertion that the start of the academic term was beyond her control, that her term began just one week before the next academic year, and that given the extenuating circumstances, she should be at least provided payment of tuition and fees for the period from August 1, 2017 to September 9, 2017. However, the Board finds that there is no exception provided under VA law to grant such an exception. The Board is bound by the law and is without authority to grant an appeal on an equitable basis. 38 U.S.C. § 7104(c); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Accordingly, the appeal for payment of tuition and fees under the Post-9/11 GI Bill in excess of $15,379.32 for the academic term beginning on July 24, 2017 and ending on October 6, 2017 is denied. 2. Entitlement to more than 48 months of combined VA educational assistance benefits Generally, veterans are eligible for a total of 36 months of education benefits under Chapter 1606 or Chapter 33, but they may not concurrently receive benefits under more than one program. See 38 U.S.C. § 3322. Where an individual is eligible for two or more education programs, including Chapter 1606 and Chapter 33, the aggregate period for which any person may receive assistance may not exceed 48 months (or the part-time equivalent). 38 U.S.C. § 3695(a); 38 C.F.R. § 21.4020(a). In this case, the evidence shows that the Veteran had initially elected to use her Montgomery GI Bill-Active Duty benefits under Chapter 1606 from January 2004 to May 2005. She had used 27 months and 10 days and had 8 months and 20 days of remaining entitlement under Chapter 1606. See October 2014 Chapter 1606 Status and Award History. When the Veteran applied for education benefits under Chapter 33, VA found that she was eligible to receive 20 months and 20 days of full-time benefits under the Post-9/11 GI Bill. By law, after deducting the 27 months and 10 days from the combined entitlement of 48 months, the Veteran was only entitled to receive 20 months and 20 days of Post-9/11 GI Bill benefits. The record shows that as of June 2017, the Veteran had been using her Chapter 33 education benefits from August 2016 to July 2017 and only had 1 month and 16 days of remaining entitlement under the Post-9/11 GI Bill. See June 2017 VA award letter. As noted above, the Veteran indicated at the January 2021 Board hearing that she may be entitled to additional VA education benefits as a result of her participation in a STEM program. Generally, VA provides for additional education benefits under the Edith Nourse Rogers STEM Scholarship to eligible individuals. 38 U.S.C. § 3320(a). An eligible individual is an individual (1) who is or was entitled to educational assistance under 38 U.S.C. § 3311; (2) who has used all of the educational assistance to which the individual is entitled under Chapter 33 or will, based on the individual’s rate of usage, use all of such assistance within 180 days of applying for benefits under the Edith Nourse Rogers STEM Scholarship; (3) who applies for assistance under 38 U.S.C. § 3320; and (4) who (A) is an individual who (i) is enrolled in a program of education leading to a post-secondary degree that, in accordance with the guidelines of the applicable regional or national accrediting agency, requires at least the standard 120 semester (or 180 quarter) credit hours for completion in a standard, undergraduate college degree in: biological or biomedical science; physical science; science technologies or technicians; computer and information science and support services; mathematics or statistics; engineering; engineering technologies or an engineering-related field; a health profession or related program; a medical residency program; or an agriculture science program or a natural resources science program; (ii) has completed at least 60 standard semester (or 90 quarter) credit hours in a field referred to in subparagraph (A)(i); or (B) is an individual who has earned a post-secondary degree in a field referred to in subparagraph (A)(i) and is enrolled in a program of education leading to a teaching certification. 38 U.S.C. § 3320(b). Any additional benefits provided under the Edith Nourse Rogers STEM Scholarship may not be counted toward the 48-month aggregate period for which any person may receive assistance. 38 U.S.C. §§ 3320(d)(4), 3695. In this case, the record does not show that the Veteran has ever applied for the Edith Nourse Rogers STEM Scholarship. Thus, the Board finds that the Veteran is not entitled to additional education benefits under Chapter 33 based on this scholarship. The Board is sympathetic to the Veteran's contentions; however, the Board is bound by the laws and regulations that apply to the claims before it. 38 U.S.C. § 7104(c); 38 C.F.R. §§ 20.104, 20.105. Those laws and regulations reflect that there is no legal basis upon which the Veteran's claim for entitlement to more than a combined 48 months of VA educational assistance benefits can be granted. Based on the record before it and for the reasons explained above, the Board must find that the Veteran's claim is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). E. I. VELEZ 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.