Citation Nr: 21024300 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 18-00 006A DATE: April 22, 2021 ORDER Eligibility to terminate an enrollment certification for the school term from January 30, 2017, to April 28, 2017, at the Harrisburg Area Community College (HACC) Fire Academy in order to preserve 38 U.S.C. Chapter 33 (Post-9/11 GI Bill) educational assistance benefits to apply towards enrollment at a different academic institution for the school term from August 14, 2017, to December 18, 2017, is denied. FINDINGS OF FACT 1. The Veteran had 15 days of entitlement remaining of Post-9/11 GI Bill educational assistance benefits at the time that he filed the February 2017 Request for Change of Program or Place of Training (VA Form 22-1995) to pursue a non-college degree certificate at the HACC Fire Academy. 2. After the Agency of Original Jurisdiction (AOJ) received a March 2017 VA Enrollment Certification (VA Form 22-1999) showing that the Veteran was enrolled for 45 clock hours at the HACC Fire Academy for the school term from January 30, 2017, to April 28, 2017, the AOJ received a March 2017 notification from the school’s education liaison representative showing that VA was unable to confirm approval of the non-college degree certificate at the HACC Fire Academy. 3. The AOJ informed the Veteran by a March 2017 letter that the HACC Fire Academy was not an approved VA program. The letter included information regarding the process of obtaining course approval and that prompt processing would occur should the program receive approval. 4. In April 2017, VA received a Notice of Change in Student Status (VA Form 22-1999b), showing that HACC Fire Academy reported a reduction in the Veteran’s clock hours from 45 hours to 38.5 clock hours on the first day of the term, effective January 30, 2017. 5. In August 2017, VA received a VA Form 22-1995, showing that the Veteran intended to attend law school at a different academic institution and that he had graduated from his previous course of study. The law school certifying official submitted a VA Form 22-1999 in August 2017 showing that the Veteran was enrolled for 15 credit hours for the school term from August 14, 2017, to December 18, 2017. 6. In September 2017, the AOJ received verification from the Web Enabled Approval Management System (WEAMS) that the non-college degree certificate at HACC Fire Academy was approved. Thereafter, in September 2017, the AOJ released payment to the HACC Fire Academy for the enrollment from January 30, 2017, to April 28, 2017. 7. Based on the AOJ’s release of funds to the HACC Fire Academy in September 2017, the Veteran exhausted the remaining 15 days of his Post-9/11 GI Bill benefits; thus, no VA educational assistance benefits could be applied toward the school term from August 14, 2017, to December 18, 2017, at the law school. CONCLUSION OF LAW The criteria to terminate an enrollment certification for the school term from January 30, 2017, to April 28, 2017, at the HACC Fire Academy in order to preserve Chapter 33 benefits to apply towards enrollment at a different academic institution for the school term from August 14, 2017, to December 18, 2017, have not been met. 38 U.S.C. §§ 3013, 3311, 3323; 38 C.F.R. §§ 21.9520, 21.9550, 21.9560, 21.9640. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty from November 2005 to December 2008, and he had additional service in the Air Force National Guard. The Veteran testified before the undersigned Veterans Law Judge during a virtual Board hearing in September 2020. The Veteran contends that he should be able to cancel or terminate the enrollment certification for the school term from January 30, 2017, to April 28, 2017, at the HACC Fire Academy, for which VA has already paid Post-9/11 GI Bill educational assistance benefits, in order to preserve and use such benefits for a course of study at a different academic institution for the school term from August 14, 2017, to December 18, 2017. Specifically, he asserts that although he requested Chapter 33 educational assistance benefits for the HACC Fire Academy for the Spring 2017 term, and which VA paid following his enrollment, attendance, and completion of this school term at this institution, he requests that VA restore these Chapter 33 benefits in order for him to be able to use these benefits for the Fall 2017 school term at another institution. The Post 9/11 GI Bill provides for VA educational assistance for members of the Armed Forces based on creditable active duty service after September 10, 2001. Generally, an individual entitled to basic educational assistance under Chapters 33 is entitled to 36 months of educational assistance benefits. 38 C.F.R. § 21.9550(a). Additionally, veterans who earn benefits under Chapter 33 are also afforded an extension provision. See 38 U.S.C. § 3312 (cross-referencing 38 U.S.C. § 3031(f)). If a veteran uses up Chapter 33 entitlement during the course of a semester, VA will continue to provide financial assistance until the end of that semester. See 38 C.F.R. § 21.9635(o). Under the provisions of Chapter 33, an individual, other than one on active duty, who is pursuing a program of education at more than one-half time at an institution of higher learning located in the United States may receive a lump sum for established charges (tuition and fees) paid directly to the institution of higher learning, a monthly housing stipend and for the first month of each quarter, semester or term as applicable, a lump sum amount for books, supplies, equipment, and other educational costs. 38 U.S.C. § 3313; 38 C.F.R. § 21.9640. Generally, VA will base entitlement charges on the principle that an eligible individual who is paid educational assistance for one day of full-time pursuit should be charged one day of entitlement. 38 C.F.R. § 21.9560(a). Furthermore, VA regulations state that an individual may not interrupt a certified period of enrollment for the purpose of conserving entitlement. An institution of higher learning may not certify a period of enrollment for a fractional part of the normal term, quarter, or semester if the individual is enrolled for the entire term, quarter, or semester. VA will make a charge against entitlement for the entire period of certified enrollment, if the individual is otherwise eligible for educational assistance, except when educational assistance is interrupted for any of the following conditions: (1) Enrollment is terminated; (2) The individual cancels his or her enrollment and does not negotiate a check or receive a direct deposit for educational assistance provided under this chapter for any part of the certified period of enrollment; (3) The individual interrupts his or her enrollment at the end of any term, quarter, or semester within a certified period of enrollment and does not negotiate a check or receive a direct deposit for educational assistance provided under this chapter for the succeeding term, quarter, or semester; or, (4) The individual requests interruption or cancellation for any break when a school was closed during a certified period of enrollment, and VA continued payments under an established policy based upon an Executive Order of the President or an emergency situation regardless of whether or not the individual negotiated a check or received a direct deposit for educational assistance provided under this chapter for any part of the certified enrollment period. See 38 C.F.R. § 21.9560(e). The facts are not in dispute. The record shows that the Veteran initially filed the Application for VA Education Benefits (VA Form 22-1990) in June 2009 for Chapter 33 benefits in lieu of 38 U.S.C. Chapter 30 (Montgomery GI Bill) education benefits. The record also shows that the Veteran utilized such Chapter 33 benefits for courses of study at several academic institutions between July 2009 and January 2017. By February 23, 2017, when VA received the Veteran’s VA Form 22-1995 to pursue a non-college degree certificate at the HACC Fire Academy, he had 15 days of entitlement remaining of Post-9/11 GI Bill educational assistance benefits available to be used. On March 3, 2017, VA received a VA Form 22-1999, which showed that the Veteran was enrolled for 45 clock hours at the HACC Fire Academy for the school term from January 30, 2017, to April 28, 2017. This amount of clock hours was reduced to 38.5 clock hours, effective January 30, 2017, by an April 27, 2017, VA Form 22-1999b. However, electronic mail (e-mail) correspondence in March 2017 between VA and the school’s certifying official shows that the school’s education liaison representative was unable to confirm VA approval of the non-college degree certificate at the HACC Fire Academy. Thereafter, in a March 29, 2017, letter, the AOJ informed the Veteran that the HACC Fire Academy was not an approved VA program, and that VA would not provide Chapter 33 benefits for this course of study. This letter also included information regarding the process of obtaining course approval and indicated that prompt processing would occur should the program received approval from VA. The record next shows that the AOJ received another VA Form 22-1995, dated August 3, 2017, in which the Veteran stated that he intended to attend law school at a different academic institution than the HACC and that he had graduated from his previous course of study from HACC Fire Academy. The law school’s certifying official submitted a VA Form 22-1999, dated August 31, 2017, showing that the Veteran was enrolled for 15 credit hours for the school term from August 14, 2017, to December 18, 2017. On September 1, 2017, the AOJ received verification through WEAMS that the non-college degree certificate at HACC Fire Academy was an approved VA program. Therefore, on the same day, the AOJ released payment to the HACC Fire Academy for the enrollment from January 30, 2017, to April 28, 2017. The AOJ also sent a final award letter, dated September 1, 2017, to the Veteran informing him that VA has paid Post-9/11 GI Bill educational assistance benefits to the HACC Fire Academy for the Spring 2017 school term, and that his entitlement to Chapter 33 benefits was exhausted. The AOJ also issued a $1,200.00 refund for Chapter 30 benefits. Thereafter, on September 18, 2017, the AOJ sent letters to HACC and the law school informing them that the Veteran had exhausted his Chapter 33 benefits. Furthermore, the AOJ sent the Veteran a letter on September 18, 2017, denying VA educational assistance benefits for the law school term from August 14, 2017, to December 18, 2017, as the Veteran had exhausted such benefits. The record, including a November 6, 2017, Report of Contact form (VA Form 119), next shows that the Veteran spoke with VA personnel over the telephone about his VA education benefits. He asserted that he called in several times during the summer in 2017 and requested that VA not use his benefits for the term that started on January 30, 2017, for the course at HACC Fire Academy. He stated that he was told no action was necessary because the course was not an approved course. He further stated that he was not told to contact the school for a termination because the course was not approved. He told the VA staff member that his plan was to use the last of his VA education benefits for the school term that started on August 14, 2017. He contended that due to the information he received from VA, he was requesting his VA education benefits back in order to applied to the Fall 2017 school term. The VA staff member advised the Veteran to complete a Notice of Disagreement (NOD). The Veteran made very similar contentions in the statement associated with the November 2017 NOD, in which he again asserted that in his communication with VA staff, he was never told to submit any withdrawal paperwork from the Fire Academy school term. The Board notes that the Veteran made very similar assertions in the December 2017 Substantive Appeal to the Board (VA Form 9) and in the September 2020 Board hearing testimony. Given this evidence, the Board finds that termination of an enrollment certification for the school term from January 30, 2017, to April 28, 2017, at the HACC Fire Academy in order to preserve Chapter 33 benefits to apply towards enrollment for law school at a different academic institution for the school term from August 14, 2017, to December 18, 2017, is not warranted. Initially, the Board notes that the Veteran has not asserted that he had more than 15 days of benefits remaining when he filed the certification to attend and use Chapter 33 benefits at the HACC Fire Academy in February 2017. Furthermore, the record does not show, and the Veteran has not asserted, that his enrollment at this institution was cancelled or that he withdrew or did not complete the course of study at HACC. In fact, the Veteran stated in the August 2017 VA Form 22-1995 that he graduated from this course of study. Although the Veteran asserts that he requested from VA to not use his benefits for the term that started on January 30, 2017, at HACC when he spoke with VA staff during the summer of 2017, the Board notes that the record does not contain any such request in the record. In fact, the first instance in which the Veteran took issue with VA’s applying the education benefits for the course of study at the HACC Fire Academy is the November 2017 VA Form 119. Furthermore, the record shows that the AOJ issued the payment to HACC in September 2017 when the Fire Academy program was confirmed as a VA-approved program. Accordingly, the Veteran negotiated a check or received a direct deposit for educational assistance for the certified period of enrollment. See 38 C.F.R. § 21.9560(e). To the extent the Veteran asserts that he relied on erroneous information, or lack of information, provided by VA staff in the telephone calls or written correspondence with VA, VA is not liable for his reliance on said erroneous information. 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). Although the Board is sympathetic to the Veteran’s contentions, it is bound by applicable law and regulations when determining a claim for VA benefits. Here, the regulatory criteria governing termination of an enrollment certification for a school term under Chapter 33 are specific, and the Board is bound by them. Pursuant to these criteria, there is no basis upon which to grant the Veteran’s request for a termination of an enrollment certification in order to preserve VA education benefits to be used at another academic institution at a later time. The record does not show that the Veteran’s enrollment was terminated. The record does show that he did not cancel his enrollment and that he negotiated a check in the form of benefits or received a direct deposit benefit for educational assistance for the certified period of enrollment in September 2017. See 38 C.F.R. § 21.9560(e). Accordingly, the Board finds that VA is unable to terminate an enrollment certification for the school term from January 30, 2017, to April 28, 2017, at the HACC Fire Academy in order to preserve Post-9/11 GI Bill educational assistance benefits to apply towards enrollment at a different academic institution for the school term from August 14, 2017, to December 18, 2017. The Board recognizes this will likely be a frustrating result for the Veteran. Nonetheless, the Board finds that the Veteran’s claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). 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. Nathan Kroes 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.