Citation Nr: 21028870 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 12-24 330 DATE: May 12, 2021 ORDER The claim of entitlement to VA educational assistance benefits under the Post-Vietnam Era Veterans' Educational Assistance Program (VEAP), Chapter 32, United States Code, is denied. FINDINGS OF FACT 1. The Veteran served on active duty from July 1981 to April 1999. 2. The Veteran did not enroll in, or make contributions to, the VEAP during his active service. CONCLUSION OF LAW The criteria for entitlement to Chapter 32 educational assistance benefits are not met. 38 U.S.C. §§ 3221, 3222; 38 C.F.R. §§ 21.5040, 21.5041, 21.5052, REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1981 to April 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 determination of a Department of Veterans Affairs (VA) Regional Office (RO) that denied entitlement to Chapter 32 VA educational assistance benefits. The Veteran disagreed with that determination and perfected an appeal to the Board. In April 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This claim was previously before the Board in July 2018, at which time it was remanded for further development. After undertaking to complete the development requested, the Agency or Original Jurisdiction (AOJ) issued an April 2020 supplemental statement of the case which it continued to find that the Veteran is not eligible for Chapter 32 educational assistance benefits. The matter was returned to the Board for further appellate consideration. In a July 2018 remand, the Board requested that the AOJ obtain a Department of Defense (DoD) data record and "VEAP contribution and banking records", which documents were referenced in a July 2012 statement of the case. The AOJ was also requested to review the service separation forms of record which state that the Veteran contributed or did not contribute to VEAP and resolve the discrepancy. On remand from the Board, the AOJ associated the DoD data record with the claims file. Regarding the VEAP contribution and banking records, the AOJ explained that there was not a VEAP banking record available, stating that it is the lack of a VEAP banking record that substantiates that the Veteran did not participate in the VEAP program. The Board notes that the AOJ did not address the discrepancy in the service separation forms with regard to whether he did or not contribute to the VEAP. However, the AOJ noted that even if it was shown that the Veteran was enrolled in, and contributed to, the VEAP, the delimiting date for participation in VEAP is 10 years after the last discharge or release from a period of active duty of 90 days of more. 38 C.F.R. § 21.5041(a)(1). As the application for Chapter 32 educational assistance benefits from which the current appeal stems was not filed until 2012, more than 10 years after the Veteran separated from service in April 1999, it was noted that the Veteran's period of eligibility, to the extent any eligibility may have existed, had expired. The Board finds that there has been substantial compliance with the prior remand directives, as the AOJ has provided adequate explanation for why the VEAP contribution and banking records were not obtained. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Although the AOJ did not specifically address the discrepancy in the service separation forms with regard to whether the Veteran contributed to the VEAP, another remand would be superfluous and would not produce favorable evidence, as the Veteran's period of eligibility for use of education benefits under the VEAP expired prior to the Veteran's 2012 application for benefits. Therefore, there is no basis for a remand that would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran. Sabonis v. Brown, 6 Vet. App. 426 (1994); Soyini v. Derwinski, 1 Vet. App. 540 (1991). Eligibility for Chapter 32 Educational Assistance Benefits Regarding eligibility for educational assistance benefits, the law provides that, in general, a veteran is eligible for educational assistance benefits pursuant to Chapter 32 if the veteran (1) enters military service on or after January 1, 1977, and before July 1, 1985, (2) elects to participate in the program for at least 12 consecutive months, and (3) agrees to have a monthly deduction made from such person's military pay of not less than $25 nor more than $100. 38 U.S.C. §§ 3221(a), 3222(a); 38 C.F.R. §§ 21.5040(a), 20.5052(a). In this case, the Veteran entered service in July 1981. A review of the service personnel records shows that the Veteran declined participation in the VEAP. Specifically, the record contains a "Contributor Educational Assistance Program Statement of Understanding," dated in August 1981 and signed by the Veteran, in which the box declining participation in the VEAP is checked. Regarding that form, the Veteran has argued that he did not check the box declining participation in the VEAP, that he was misinformed regarding contents of the form, and that he did not understand what he was signing at the time. To the extent that may be true, the fact remains that the record contains a form signed by the Veteran in which participation in the VEAP was declined. The Board regrets if the Veteran received misinformation from the service department regarding the consequences of declining participation in that program. However, any misinformation then provided cannot now serve as a basis for establishing eligibility for VA educational assistance where it does not otherwise exist. Harvey v. Brown, 6 Vet. App. 416, 424 (1994) (benefits cannot be awarded on the basis of the VA's failure to provide a veteran with accurate information pertaining to eligibility). Despite having declined to participate in the VEAP, during the April 2016 Board hearing, the Veteran asserted his belief that he had participated in VEAP, noting that on several service separation forms, it indicated that the Veteran participated in the VEAP. In July 2018, the Board remanded the matter for the AOJ to associate with the record certain evidence pertinent to whether the Veteran contributed to the VEAP. As explained by the AOJ, there is no record of the Veteran having contributed to the VEAP. A DoD data record showed that the Veteran was ineligible for Chapter 32 educational assistance benefits, and the AOJ could locate no VEAP banking record available, which the Board agrees substantiates that the Veteran did not participate in the VEAP. The Board also notes that the Veteran's service personnel records do not contain any evidence which otherwise shows that he made VEAP contributions, to include any specific amounts or dates or contribution or withholding. The Board is sympathetic to the Veteran in this case, and acknowledges that various service separation forms identify him as being a VEAP contributor. Nevertheless, in light of the DoD records indicating that he had no VEAP account and was ineligible for Chapter 32 educational assistance benefits, the Board must conclude that the preponderance of the evidence is against finding that the made contributions to the VEAP. Consequently, the benefit sought on appeal must be denied. The Board notes that even were it shown that the Veteran contributed to the VEAP, no educational assistance shall be provided to an eligible individual under Chapter 32 beyond a date 10 years after that individual's last discharge or release from a period of active duty of 90 days or more of continuous service. 38 C.F.R. § 21.5041(a)(1). The Veteran separated from service on April 7, 1999. Thus, the period of eligibility for use of any Chapter 32 educational assistance benefits expired on April 8, 2009. The Veteran's current claim was not received until 2012, well after expiration of the eligibility period, to the extent one could be established. Although an extended period of eligibility is allowed in certain circumstances, the Veteran did not apply for any extension. 38 C.F.R. § 21.5042. Thus, even if the Board were to find that the Veteran contributed to the VEAP, entitlement to Chapter 32 educational assistance benefits would remain denied because the Veteran's period of eligibility for use of any VEAP benefits expired prior to receipt of the Veteran's claim for VEAP benefits. Accordingly, the Board finds that the claim must be denied. Harvey P. Roberts 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.