Citation Nr: 22014764 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 17-42 862 DATE: March 15, 2022 ORDER The Veteran did not make an irrevocable election for education benefits under Chapter 33, Title 38, United States Code (the Post-9/11 GI Bill or Chapter 33) in lieu of receiving benefits under Chapter 30, Title 38, United States Code (Montgomery GI Bill (MGIB) or Chapter 30); thus, to this extent, the claim is granted. FINDINGS OF FACT 1. Although the Veteran elected to receive Post-9/11 GI Bill educational assistance benefits in lieu of receiving such benefits under the MGIB in a March 2016 Application for VA Education Benefits (VA Form 22-1990), this election was not irrevocable. 2. The Veteran's entitlement to Post-9/11 GI Bill benefits is not limited by his prior use of benefits under the MGIB. CONCLUSION OF LAW As the Veteran did not make an irrevocable election to receive VA educational assistance benefits under Chapter 33 in lieu of receiving such benefits under Chapter 30, the criteria for continued entitlement to educational assistance benefits under the MGIB program have been met, and the criteria for entitlement to Chapter 33 educational assistance benefits in excess of three months and 21 days, subject to the to the statutory cap of 48 months of aggregate benefits, have also been met. 38 U.S.C. §§ 3301, 3311, 3313, 3319, 3322; 38 C.F.R. §§ 21.9505, 21.9520, 21.9640, 21.9570; BO v. Wilkie, 31 Vet. App. 321 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty from March 2003 to March 2006. The most recent evidence of record also shows that as of April 2017, he has been on active duty since May 2009. The Agency of Original Jurisdiction (AOJ) certified the current matter on appeal as whether three months and 21 days of entitlement under the Post-9/11 GI Bill were correct. After reviewing the relevant evidence and contentions, the Board determines that this matter should be recharacterized as it appears on the title page of this decision based on the applicable law and facts of this case. In the August 2017 VA Form 9, Appeal to the Board, the Veteran requested a Board hearing via videoconference. He was scheduled for such a hearing on two occasions in October 2021, but the hearing was postponed on both occasions. He was again scheduled to present testimony during a hearing before a Veterans Law Judge in January 2022. The Veteran was notified of the time and place of the hearing by an October 2021 letter. However, he failed to appear for the hearing, and he has not requested that the hearing be rescheduled or established good cause for the failure to appear for the hearing. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704. A review of the record shows that in March 2016, the Veteran filed a VA Form 22-1990, indicating that he was seeking benefits under the Post-9/11 GI Bill, effective April 1, 2016. The record shows that the Veteran was previously approved for, and that he utilized, MGIB educational assistance benefits. Specifically, the Veteran was determined to have 36 months of entitlement under Chapter 30 based on his period of active duty. As of April 1, 2016, he had used all but three months and 21 days of entitlement under the MGIB. In a March 2016 letter, the AOJ informed the Veteran that if he relinquished Chapter 30 benefits, effective April 1, 2016, he would only be entitled to receive three months and 21 days of Chapter 33 benefits. However, it noted that if the Veteran first exhausted all of his Chapter 30 benefits, then he would be entitled to an additional 12 months of Chapter 33 benefits. The letter informed the Veteran that he had 30 days to request a different relinquishment of benefits, otherwise VA would process his March 2016 request to relinquish Chapter 30 benefits in lieu of Chapter 33 benefits, which meant that he would only receive three months and 21 days of Chapter 33 benefits. The letter further informed the Veteran that any election to receive Chapter 33 educational assistance benefits in lieu of receiving such benefits under Chapter 30 was irrevocable. The record shows that the Veteran did not respond to the March 2016 letter. Thus, on April 20, 2016, the AOJ determined that the Veteran had made an irrevocable election to receive Chapter 33 benefits in lieu of Chapter 30 benefits, effective April 1, 2016, and that he was entitled only to three months and 21 days of Chapter 33 benefits. In the June 2017 Notice of Disagreement (NOD), as well as in the August 2017 VA Form 9, the Veteran contended that he thought he had first exhausted his MGIB benefits and that his additional 12 months of Post-9/11 GI Bill benefits would start thereafter. He stated that after speaking with VA personnel over the telephone, his intention was to first exhaust his benefits under one program in order to receive an additional 12 months of benefits under the second program. He requested that VA allow him to exhaust his benefits under the MGIB in order to receive an additional year of benefits under the Post-9/11 GI Bill program. Relevant to the matter currently before the Board, laws administered by VA provide a limit on training under two or more programs. Specifically, the aggregate period for which any person may receive assistance under two or more of the following laws may not exceed 48 months (or the part-time equivalent): (1) Part VII or VIII, Veterans Regulations numbered 1(a), as amended; (2) Title II of the Veterans' Readjustment Assistance Act of 1952; (3) The War Orphans' Educational Assistance Act of 1956; (4) 38 U.S.C. chapters 30, 32, 33, 34, 35, and 36; (5) 10 U.S.C. chapters 106a, 1606, and 1607; (6) Section 903 of the Department of Defense Authorization Act, 1981; (7) The Hostage Relief Act of 1980; and (8) The Omnibus Diplomatic Security and Antiterrorism Act of 1986. 38 U.S.C. § 3695(a); 38 C.F.R. § 21.4020(a). Further, the law provides that an individual who, as of August 1, 2009, has used entitlement under Chapter 30, but retains unused entitlement under that chapter, makes an irrevocable election to receive educational assistance under the provisions of Chapter 33 in lieu of educational assistance under the provisions of Chapter 30, will be limited to one month (or partial month) of entitlement under Chapter 33 for each month (or partial month) of unused entitlement under Chapter 30 (including any months of Chapter 30 entitlement previously transferred to a dependent that the individual has revoked). 38 U.S.C. § 3327(a)(1), (i); 38 C.F.R. § 21.9550(b)(1). However, since the Veteran's case was certified and transferred to the Board in October 2017, the United States Court of Appeals for Veterans Claims (Court) held in BO v. Wilkie that veterans with two or more qualifying periods of service can receive benefits under both the MGIB and the Post-9/11 GI Bill. 31 Vet. App. 321, 324 (2019). The Court stated that a veteran need not relinquish or exhaust any remaining benefits under the MGIB to obtain benefits under the Post-9/11 GI Bill. Id. The Court further found that any irrevocable waiver or relinquishment of benefits under one of these programs was null. Thus, veterans who use, but do not exhaust MGIB benefits and who then apply for Post-9/11 GI Bill benefits after a separate period of service, are not limited to the total of 36 months provided for the MGIB program. This is so because, as explained by the Court, 38 U.S.C. § 3327 does not apply "in cases of individuals with dual entitlement based on multiple periods of service," but rather, applies only in cases of "individuals with dual entitlement based on a single period of service." Id. at 334. Notably, the Court's holding in BO v. Wilkie was recently affirmed by the United States Court of Appeals for the Federal Circuit in Rudisill v. McDonough, 4 F.4th 1297 (Fed. Cir. 2021). The facts in the Veteran's case are indistinguishable from the facts in BO v. Wilkie as the Veteran has two periods of active duty that qualifying under both the MGIB and the Post-9/11 GI Bill. Thus, the Board finds that although the Veteran made an irrevocable election in March 2016 to receive Post-9/11 GI Bill educational assistance benefits in lieu of receiving such benefits under Chapter 30, this irrevocable waiver or relinquishment of Chapter 30 benefits was null under subsequent caselaw. Accordingly, as the Veteran did not make an irrevocable election for education benefits under the Post-9/11 GI Bill program in lieu of benefits under the MGIB program, the claim is granted to this extent. The Veteran may utilize his remaining Chapter 30 benefits again if he so chooses. Furthermore, as the Court found in BO, the law allows the Veteran to receive entitlement under both programs subject to a 36-month cap on utilization of each of the two separate programs and a 48-month cap overall. Accordingly, as the Veteran's eligibility for receipt of Post-9/11 GI Bill benefits has already been established, he is entitled to benefits under that program as well. His entitlement to Post-9/11 GI Bill benefits in excess of three months and 21 days is thus also granted, subject to the statutory cap of 48 months of aggregate benefits under two or more VA education programs. A. P. SIMPSON 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.