Citation Nr: 21026305 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 18-00 784 DATE: April 30, 2021 ORDER The appeal as to the issue of entitlement to additional Department of Veterans Affairs (VA) educational assistance benefits under Chapter 33, Title 38, of the United States Code (known as the Post-9/11 GI Bill) is dismissed as moot. FINDING OF FACT As VA has restored 30 months and 25 days of entitlement to Chapter 33 educational assistance benefits, the full amount of the Veteran’s remaining entitlement, the issue of whether he is entitled to additional Chapter 33 educational assistance benefits has been rendered moot. CONCLUSION OF LAW The matter of whether the Veteran is entitled to additional Chapter 33 educational assistance benefits has been rendered moot by the fact that VA restored his remaining entitlement, in full, leaving no question of law or fact to decide regarding the recoupment issue. 38 U.S.C. §§ 7104, 7105. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Marine Corps Reserve, which service included periods of active duty from September 1, 1999, to February 24, 2000; from April 10, 2001, to October 5, 2001; from October 7, 2001, to February 23, 2002; from May 24, 2002, to December 31, 2002; from January 14, 2003, to January 13, 2004; and from January 25, 2009, to September 30, 2011. This appeal to the Board of Veterans’ Appeals (Board) is from a November 2017 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that the Veteran was ineligible for Post-9/11 GI Bill benefits because he had used a total of 48 months of education benefits under multiple VA education programs. He disagreed with that determination, and this appeal ensued. In January 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. The Veteran’s representative was not at the hearing; however, the Veteran elected to still have the hearing. A review of the record shows the Veteran previously had applied for, and was approved for use of, Chapter 33 educational assistance benefits. Via letter dated in November 2011, he was informed that he had been awarded VA education benefits under the Post-9/11 GI Bill and that benefits were being paid for the school term running from January 9, 2012, through March 24, 2012. VA then informed him that he had 30 months and 25 days of entitlement remaining to use by October 1, 2026. The record shows also that the Veteran received Veteran Readiness and Employment (VR&E) (formerly known as Vocational Rehabilitation and Employment) services under Chapter 31, Title 38, of the United States Code. Then, in October 2017, he filed a request for change of program or place of training under Chapter 33. He reported that he had previously used Chapter 33 benefits for a program of education at California State University, Los Angeles, but that he had stopped his training on March 24, 2012. In November 2017, the RO determined the Veteran was ineligible for Post-9/11 GI Bill benefits because he had used a total of 48 months of education benefits under multiple VA education programs. In disagreeing with that decision, he argued that his use of Chapter 31 benefits (VR&E services) was not to be counted against Chapter 33 educational assistance benefits when applying the “48-Month Rule.” See 38 U.S.C. § 3695(a) (providing that the aggregate period for which any person may receive assistance under two or more specified education programs may not exceed 48 months (or the part-time equivalent)). In this regard, the Board notes that, in December 2015, VA’s General Counsel issued an advisory opinion, entitled “Procedural Advisory: 48-Month Rule and Chapter 31 Entitlement Used (Original Claims),” which held that “the use of benefits under 38 U.S.C. chapter 31 does not limit the use of education benefits listed under 38 U.S.C. § 3695(a).” The advisory opinion further stated: “Education Service will provide additional guidance for non-original claims (i.e., supplementals, specialty cases, and disputes) for processing and retroactive scenarios in a future advisory. The only change required for this advisory is to discontinue deducting chapter 31 benefits used.” Notably, a December 2020 “Report of Contact” indicates the Veteran’s claim was reviewed and that 30 months and 25 days of Chapter 33 entitlement resultantly was restored. During his January 2021 hearing, the Veteran affirmed that reinstatement of 30 months and 25 days of entitlement to Chapter 33 benefits previously available. He added that action had satisfied his original appeal, in full. Thus, given the restorative action taken with respect to the Veteran’s request for Chapter 33 educational assistance benefits, the Board finds that any issue regarding whether he is entitled to additional VA educational assistance benefits under the Post-9/11 GI Bill is now moot. Indeed, he has expressed his satisfaction with the restoration of 30 months and 35 days of entitlement to educational assistance benefits under that program. Thus, because the benefit sought on appeal has been granted, in full, the issue on appeal has been rendered moot.   It is well-established that, when there is no case or controversy or when a once live case or controversy becomes moot, an appellate body lacks jurisdiction. The law provides that the Board may dismiss an appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. As discussed, the issue of whether the Veteran is entitled to additional VA educational assistance benefits under the Post-9/11 GI Bill has been rendered moot by VA’s reinstatement of 30 months and 25 days of entitlement to Chapter 33 educational assistance benefits. Accordingly, as there remains no outstanding error of fact or law for the Board to address with respect to this matter, the claim on appeal must be dismissed as moot. As a final matter, the Board notes that, during his January 2021 hearing, the Veteran also inquired about whether his delimiting date for Post-9/11 GI Bill benefits could be extended on account of the fact that it took three years for his remaining entitlement to be restored. In this regard, the Board notes that VA will extend a Veteran’s period of eligibility if medical evidence clearly establishes that he was prevented from initiating or completing his program of education because of a physical or mental disability that did not result from his own willful misconduct, and if he applies for the extension within a specified time limit. 38 C.F.R. § 21.9535(a). VA will also grant an extension if the Veteran was captured and forcibly detained by a foreign government or power and was hospitalized at a military, civilian or medical facility immediately thereafter. 38 C.F.R. § 21.9535(b). Similarly, the date that the period of eligibility begins to run may be delayed if the Veteran’s nature of discharge that previously disentitled him from benefits had changed or the Veteran was prevented from pursuing a program of education because he was acting as the primary provider of personal care services for a veteran. See 38 U.S.C. §§ 3031(b), (d), 3321(b). As the Veteran has not yet filed for an extension of his delimiting date, the Board will not comment of whether any such extension would be warranted in this case.   However, if he believes that he is entitled to an extension of the delimiting date for use of his Post-9/11 GI Bill benefits, the Veteran is advised that he must file a formal claim for an extended period of eligibility within the applicable time limits. See 38 C.F.R. § 21.1033(c) (providing the time limits in which a claim for an extension of the delimiting date can be filed). KEITH W. ALLEN 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.