Citation Nr: 21040480 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 17-64 923 DATE: July 3, 2021 ORDER The Veteran did not file a timely notice of disagreement with the May 2014 determination that she was entitled to a benefit level of 60 percent, but not higher, for educational assistance benefits under the provisions of 38 U.S.C. Chapter 33 (Chapter 33 or Post-9/11 GI Bill); thus, the claim is denied. FINDINGS OF FACT 1. In May 2014, VA issued a certificate of eligibility to the Veteran informing her that she was entitled to Chapter 33 benefits at the 60 percent level as her total aggregate active service was greater than 12 months but less than 18 months. 2. The Veteran's disagreement with the amount of the benefit level of 60 percent for Chapter 33 benefits was received for the first time in May 2017. CONCLUSION OF LAW The Veteran did not file a timely notice of disagreement with the May 2014 eligibility determination for entitlement to Chapter 33 benefits at the 60 percent benefit level; thus, the May 2014 eligibility determination is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty from May 2008 to September 2014. For her meritorious service, the Veteran was awarded (among other decorations) the Joint Service Commendation Medal and the Air Force Commendation Medal. The Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference in December 2019. A transcript of the hearing is included in the claims file. The Board denied the matter on appeal in a February 2020 decision. The Board also issued a July 2020 decision correcting the spelling of the Veteran's name throughout the February 2020 decision, but otherwise not changing any other aspect of the February 2020 decision. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). Per a December 2020 Joint Motion for Remand (Joint Motion), the Court issued an order vacating the Board's February 2020 decision, and remanding the matter to the Board. Specifically, in the December 2020 Joint Motion, the Veteran and the Secretary of VA (parties) agreed that the Board erred when it did not provide an adequate statement of reasons or bases as to why the Veteran's May 2017 notice of disagreement was untimely. The Board shall analyze the contentions made between the parties in the Joint Motion below. Further, while the Veteran was represented by a private attorney before the Court, she has not appointed that attorney as her representative, nor has she appointed any other representative before VA. The Veteran contends that she is entitled to a benefit level in excess of 60 percent for educational assistance benefits under the Post-9/11 GI Bill. However, in order for the Board to address the merits of this contention, it must first determine whether the Veteran filed a timely notice of disagreement with the VA determination that she was only entitled to benefits at the 60 percent benefit level, but not higher, under Chapter 33. An appeal to the Board must be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is issued to the claimant by VA. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302. Proper completion and filing of a substantive appeal are the last actions a claimant needs to take to perfect an appeal. 38 C.F.R. § 20.202. With respect to a notice of disagreement, a written communication from a claimant or representative expressing dissatisfaction or disagreement with an adjudicative determination and a desire to contest the result, will constitute a notice of disagreement. 38 U.S.C. § 7105; 38 C.F.R. § 20.201. While special wording is not required, the notice of disagreement must be in terms that can be reasonably construed as a disagreement with that determination and a desire for appellate review. 38 C.F.R. § 20.201; Gallegos v. Gober, 283 F.3d 1309 (Fed. Cir. 2002). The actual wording of the communication and the context in which it was written must be considered in determining whether a communication constitutes a notice of disagreement. Jarvis v. West, 12 Vet. App. 559 (1999). All communications should be liberally construed. Maggitt v. West, 202 F.3d 1370 (Fed. Cir. 2000). A claimant or her representative must file a notice of disagreement within one year from the date that the Agency of Original Jurisdiction (AOJ) mailed notice of a decision. 38 C.F.R. § 20.302(a). If a notice of disagreement is not filed within the one-year time period, the decision becomes final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1103. An untimely notice of disagreement deprives the Board of jurisdiction to consider the merits of an appeal. 38 U.S.C. § 7105(c). While the Board may waive the issue of the timeliness of a substantive appeal, an untimely notice of disagreement is a jurisdictional bar to appellate consideration, and the issue may not be waived. Percy v. Shinseki, 23 Vet. App. 37 (2009). The Board is bound by the law and is without authority to grant an appeal on an equitable basis. 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416 (1994). The issue of whether a notice of disagreement has been filed on time is appealable. If the claimant or representative protests an adverse decision made by the AOJ with respect to the timely filing of a notice of disagreement, the claimant will be furnished a statement of the case on the issue of whether the notice of disagreement was timely. 38 C.F.R. §§ 19.34, 20.101(c). The essential facts in this case are not in dispute. In May 2014, the Veteran applied to receive Chapter 33 benefits in an Application for Education Benefits (VA Form 22-1990). In a May 2014 decision and certificate of eligibility, sent on May 28, 2014, the Veteran was notified that she was entitled to eligibility to Chapter 33 benefits at the 60 percent benefit level based on the fact that she had more than one year, but less than 18 months, of active service for Post-9/11 GI Bill purposes. See 38 C.F.R. § 21.9640(a). Specifically, this certificate of eligibility showed that she had 365 days of qualifying service for Chapter 33 purposes for the period from May 28, 2008, until the date of the of the notification as she was on active duty at the time. The Board notes, however, that verification with records from the Department of Defense shows that the Veteran's qualifying period of active duty for Chapter 33 purposes began on May 29, 2013, as that is the first date after she satisfied a five-year obligation pursuant to an agreement as a cadet in a service academy. This notice also informed her that she had 36 months of Chapter 33 benefits to utilize. She was also provided with VA Form 4107, entitled "Your Rights to Appeal Our Decision," which indicated that she had one year from the date of the May 2014 decision to appeal the determinations made in the decision. Thereafter, following the Veteran's inquiry regarding her VA education benefits in October 2014, as well as submission of a Certificate of Release or Discharge From Active Duty (DD Form 214), which showed that she separated from active duty on September 29, 2014, the AOJ issued the Veteran another certificate of eligibility, dated November 7, 2014. The November 2014 notification confirmed that she was entitled to entitled to Chapter 33 benefits at the 60 percent benefit level based on her 489 days of qualifying service for Chapter 33 purposes, i.e., from May 28, 2008, until September 29, 2014. The Board notes that 489 days of qualifying active duty service entitles the Veteran to Post-9/11 GI Bill benefits at the 60 percent benefit level as she had more than one year, but less than 18 months, of active service. See 38 C.F.R. § 21.9640(a). The record shows that the Veteran utilized Chapter 33 benefits to pursue a course of study between 2014 and 2017. Throughout this time period, VA issued numerous certificates of eligibility, to include in September 2014, showing that she was entitled to Chapter 33 benefits at the 60 percent rate, and these letters noted how many more months she had to receive such benefits, as well as the delimiting date to use such benefits. The Veteran again applied for Chapter 33 benefits on May 9, 2017, by filing another VA Form 22-1990 with nearly identical information as listed in the May 2014 VA Form 22-1990. The AOJ again issued a certificate of eligibility, dated May 17, 2017, which again informed the Veteran that she was entitled to such benefits at the 60 percent level, based on her 489 days of qualifying service between May 28, 2008, and September 29, 2014. As noted above, the 489 qualifying service days are for the Veteran's period of active duty from May 29, 2013, until September 29, 2014. The May 2017 notification further informed the Veteran that she had 11 months and 20 days of full-time benefits remaining and that she had under September 30, 2029, to utilize these benefits as that was the delimitating date for the 15-year period to use such benefits. On May 30, 2017, the Veteran filed a notice of disagreement (VA Form 21-0958) indicating that her dates of service were improperly calculated and that she should be awarded eligibility to Chapter 33 benefits at the 100 percent rate because she had over six years of active service. Given this evidence, the Board finds that the May 2017 notice of disagreement was not timely filed because it was received more than one year following the issuance of the May 2014 certificate of eligibility, which established the amount of benefits the Veteran was entitled to under the Post-9/11 GI Bill. Therefore, that communication cannot be accepted as a timely notice of disagreement, and thus, the May 2014 decision on the amount of benefits the Veteran is entitled to is final. 38 C.F.R. §§ 20.204(c), 20.302. No earlier communication from the Veteran was received after the May 2014 decision that could reasonably be construed as a timely notice of disagreement. The Board acknowledges the Veteran's assertion that her May 2017 notice of disagreement was timely as she was also informed of her eligibility to Chapter 33 benefits at the 60 percent level in the certificate of eligibility dated May 17, 2017. Although the Veteran was informed in the May 2017 certificate of eligibility letter that she was being paid Chapter 33 benefits at the 60 percent level, this letter was not the initial determination of benefit eligibility and was merely an implementation of the prior eligibility determination. Therefore, the May 2017 notification is not an actual decision regarding the level of entitlement, but merely an enactment of a previously determined level of entitlement, and so, is not subject to disagreement in that respect. The Board notes that the Veteran received several other such certificates of eligibility between 2014 and 2017 and she did not disagree with the benefit level of Post-9/11 GI Bill benefits at those times. The December 2020 Joint Motion states that in analyzing whether the Veteran's May 2017 notice of disagreement was timely, the Board must address the Veteran's filing of a new claim for education benefits on May 9, 2017, and it must address that she had active duty service subsequent to the May 2014 certificate of eligibility. Initially, the Board notes that the Joint Motion refers to a December 2017 notice of disagreement. However, while a copy of such a notice of disagreement was associated with the Veteran's claims file on December 4, 2017, the overall evidence of record shows that the Veteran initially filed this notice of disagreement on May 30, 2017. In fact, she signed this notice of disagreement on May 22, 2017. Although the Veteran filed another VA Form 22-1990 on May 9, 2017, this new application does not establish that the May 14, 2017, certificate of eligibility letter was an initial determination of benefit eligibility at the 60 percent benefit level. In fact, the record, including the numerous enrollment certifications from the Veteran's school and the Veteran's December 2019 Board hearing testimony, does not only establish that entitlement to Chapter 33 benefits at the 60 percent benefit level was granted prior to the May 2017 VA Form 1990, but that the Veteran has been using such benefits at the 60 percent rate between 2014 and 2017. Thus, the May 2017 certificate of eligibility was not an initial decision as to the percentage level of Chapter 33 benefits that the Veteran was entitled to. As noted above, this May 2017 certificate of eligibility was merely an implementation of the prior eligibility determination. The fact that the Veteran filed an almost identical VA Form 22-1990 in May 2017 does not show that the May 2014 certificate of eligibility was not final as to the matter of the benefit level of 60 percent of Chapter 33 benefits, or that the May 2017 certificate of eligibility renewed this matter, which was adjudicated almost three years prior. Furthermore, the Board acknowledges that the Veteran had additional active duty after the issuance of the May 2014 certificate of eligibility. Specifically, her DD Form 214 shows that she had qualifying service until September 29, 2014. Although these additional active duty days changed the Veteran's qualifying service for purposes of Chapter 33 from 365 days to 489 days, this fact did not entitle the Veteran to a benefit level in excess of 60 percent as she still has more than one year, but less than 18 months, of active service for Post-9/11 GI Bill purposes even with the addition active duty days. See 38 C.F.R. § 21.9640(a). However, the Board notes that this change from 365 qualifying days to 489 qualifying days does not establish that the Veteran's May 2017 notice of disagreement was timely. As noted above, the AOJ issued another certificate of eligibility on November 7, 2014, which included this information regarding the benefit level of 60 percent based on the 489 days of qualifying service. The Veteran does not suggest, and the evidence does not show, that she filed a timely notice of disagreement with this November 2014 letter. Lastly, the December 2020 Joint Motion instructed the Board to address whether the Veteran is entitled to a higher rating based on her active duty service pursuant to 38 U.S.C. § 3311(b), (d). However, as noted above, in order for the Board to address the merits of her contention, the threshold requirement that a timely notice of disagreement with the VA determination that she was only entitled to 60 percent benefits, but not higher, under Chapter 33 must be met. Nonetheless, the Board also acknowledges the Veteran's assertion that her service was improperly calculated when determining whether she had more than 12 months of active service, which would entitlement her to payment of Chapter 33 benefits at the 100 percent level. As previously noted in the Board's February 2020 decision, the Veteran's eligibility determination was based on Department of Defense records regarding her dates and characterization of active service. The Board notes that where service department certification is required, the service department's decision on the matter is conclusive and binding on VA. 38 C.F.R. § 3.203(c); Duro v. Derwinski, 2 Vet. App. 530 (1992). Thus, if the United States service department does not verify the claimed service, the applicant's only recourse lies with the relevant service department, not with VA. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). Therefore, the argument that her dates of service were improperly calculated for the purposes of the Post-9/11 GI Bill cannot be considered by VA as VA is bound by the service department verification of service. Finally, to the extent that the Veteran contends that her service at the Air Force Academy has led her to be treated differently than other service members (specifically those in ROTC programs), the Board must apply the laws and regulations regarding veterans benefits as passed by Congress and implemented by VA. Quite simply, it is Congress that has made the distinction between service academy graduates and other service members, and the Board must apply the laws as written. The Board finds that a notice of disagreement was not timely filed to the May 2014 decision regarding the level of Chapter 33 benefits to be paid, and the Veteran's claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (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. Evan M. Deichert 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.