Citation Nr: 21027553 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 14-31 892 DATE: May 6, 2021 ORDER Entitlement to additional Department of Veterans Affairs (VA) educational assistance benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) for a vocational flight training program beginning on January 14, 2012, is denied. FINDINGS OF FACT 1. The Veteran was approved for a maximum amount of $10,000.00 for his enrollment in a vocational flight training program for the period from January 14, 2012, to July 31, 2012. 2. As of August 1, 2012, the Veteran has used 12 months of Chapter 33 benefits for his enrollment in the vocational flight training program. CONCLUSION OF LAW The criteria for additional education benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) for a vocational flight training program beginning on January 4, 2012, have not been met. 38 U.S.C. §§ 3311(b), 3313(g)(3)(C), (5). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1997 to February 2020. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 determination by a VA Regional Office (RO). In May 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In July 2018, the Board remanded the case for additional development; namely, to provide an accounting with notice to the Veteran regarding the amount of Post 9/11 GI Bill educational benefits he used, particularly in regard to his flight training program in 2012. Thereafter, in December 2020, the appellant was afforded notice of the accounting as well as a supplemental statement of the case (SSOC). Accordingly, there has been substantial compliance with the Board's July 2018 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case now returns for further appellate review. Entitlement to additional VA educational assistance benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) for a vocational flight training program beginning on January 14, 2012. The Post-9/11 G.I. Bill was enacted by Congress in June 2008. See Pub. L. No. 110-252, Title V, §§ 5001-5003, 122 Stat. 2357 (2008). The provisions of the Act are codified at 38 U.S.C. §§ 3301-3327 with the implementing regulations found at 38 C.F.R. §§ 21.9500-21.9770. Under the Chapter 33 provisions, an eligible individual is entitled to a maximum of 36 months of educational assistance. 38 C.F.R. §§ 21.9550, 21.9570. There is no dispute in the present case that the Veteran meets the basic eligibility requirements for Post-9/11 G.I. Bill educational benefits. What is in dispute is the amount of entitlement that he has been charged for his enrollment in a vocational flight training program. Records show that the Veteran enrolled in a vocational flight training program in pursuit of a commercial pilot's license at Rocky Mountain (USAF) Flight Training Center at Peterson Air Force Base in Colorado. Monthly enrollment certifications from the flight school are on file from January 14, 2012 to July 31, 2012. In this regard, the Veteran testified that he was enrolled in the flight training program from January 2012 to October 2012, but VA informed him that he had reached his maximum benefit as of July 2012. In an August 2012 award letter, VA informed the Veteran that he was entitled to receive 100 percent of the amounts payable under the Post-9/11 GI Bill for the flight program and VA would reimburse a maximum of $10,000.00 for the program. See 38 U.S.C. § 3313(g)(3)(i)(c)(II) (aa); https://benefits.va.gov/gibill/resources/benefits_resources/rates/ch33/Ch33rates080111.asp. A payment history shows that payment for tuition and fees was made in lump sum amounts of $5,531.90 for the term beginning January 14, 2012, and ending March 24, 2012, and $4,468.10 for the term beginning April 2, 2012, and ending August 1, 2012. The Veteran was further informed in the August 2012 letter that he had 24 months of remaining benefits. The Veteran does not dispute the $10,000.00 payment amount that he received for the program, only the amount of Chapter 33 entitlement that he was charged. In this regard, he said that several VA individuals told him that he would only be charged 9 months of benefits for the 2012 academic year, thus entitling him to 27 months of remaining benefits rather than 24. He asserts that the 36 months of total benefits available under the Post-9/11 GI Bill only makes sense if the academic year is based on a 9-month rather than a 12-month academic year by excluding the summer months. The Veteran's essential argument is consistent with the general provisions for entitlement charges under 38 C.F.R. § 21.9560. This section provides that, if an individual is pursuing a program of education on a full-time basis, during any period for which VA pays established charges to the institution of higher learning (IHL) on the individual's behalf, the entitlement charge will be one day for each day of the certified enrollment period. See 38 C.F.R. § 21.9560(b)(1)(i)(A). An IHL is defined as a college, university, or similar institution, including a technical or business school, offering postsecondary level academic instruction that leads to an associate or higher degree if the school is empowered by the appropriate State education authority under State law to grant an associate or higher degree. 38 C.F.R. § 21.9505. However, applicable to this case is section 105 of Public Law 111-377 (the Post 9/11 Veterans Educational Assistance Improvements Act of 2010), which made several amendments to eligibility and benefits under the Post-9/11 GI Bill and expanded the eligible programs of education to include flight training from non-IHLs, effective October 1, 2011. This law dictates that VA apply a formula in calculating the amount of Post-9/11 GI Bill entitlement charged for a certificate and other non-college degree programs, to include flight training. For such program, entitlement charged will be one month for each of the amount so paid, divided by the amount equal to one-twelfth of the maximum amount applicable in the academic year in which the payment was made, which is then prorated by the person's Post-9/11 GI Bill benefit level. See 38 U.S.C. § 3313(g)(5); Pub. L. No. 111-377, § 105(g)(5) (the Post 9/11 Veterans Educational Assistance Improvements Act of 2010). Accordingly, the Veteran was properly informed in the December 2020 accounting letter and associated SSOC that the academic year cap in tuition and fees for his vocational flight training program from January 14, 2012, through July 31, 2012 (which commenced during the academic year beginning on August 1, 2011) was $10,000.00, of which he could receive $10,000.00 based on his 100 percent eligibility rate. See 38 U.S.C. §§ 3311(b), 3313(g)(3)(C)(i)(II) (aa). Therefore, the maximum amount payable when divided by 12 ($10,000.00/12), equals $833.3333. See 38 U.S.C. § 3313(g)(5); Pub. L. No. 111-377, § 105(g)(5) (the Post 9/11 Veterans Educational Assistance Improvements Act of 2010). Thus, for every amount equal to $833.3333, the Veteran is charged one month of entitlement. It follows that the total amount of Chapter 33 benefits in the amount of $10,000.00 that the Veteran received for his vocational flight training program represents 12 months of payments at $833.333 a month. Accordingly, the Agency of Original Jurisdiction's determination that he used 12 months of Chapter 33 benefits for flight training school from January 14, 2012, to July 31, 2012 was properly calculated by applying the charge against entitlement provisions of 38 U.S.C. § 3313(g)(5). As such, he had 24 months of remaining benefits as of August 1, 2012. To the extent the Veteran asserts that he relied on erroneous information provided or omitted by VA staff regarding the amount of entitlement he would receive for his vocational flight training program, VA is not liable for his reliance on said erroneous information dispensed by VA. 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 entitlement to Chapter 33 benefits for vocational flight training are specific, and the Board is bound by them. Pursuant to such criteria, there is no basis upon which to grant the Veteran additional entitlement to Chapter 33 educational assistance benefits for his vocational flight training program in 2012 and his claim must therefore be denied. 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. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shawkey, Anne M. 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.