Citation Nr: 23005487 Decision Date: 01/27/23 Archive Date: 01/27/23 DOCKET NO. 12-24 116A DATE: January 27, 2023 ORDER The claim of entitlement to additional Department of Veterans Affairs (VA) educational assistance benefits, in excess of 22 months and 21 days, under Chapter 33, Title 38, United States Code (known as the Post-9/11 GI Bill), is denied. REMANDED The issue of entitlement to a refund in excess of $756.57 for unused contributions under Chapter 30, Title 38, United States Code (known as the Montgomery GI Bill (MGIB)), is remanded. FINDING OF FACT The Veteran had previously used 25 months and 9 days of entitlement under the Post-Vietnam Era Veterans' Educational Assistance Program (VEAP), Chapter 32, United States Code; he thus had 22 months and 21 days of unused entitlement remaining under Chapter 33. CONCLUSION OF LAW The Veteran has no legal entitlement to VA educational assistance benefits greater than 22 months and 21 days under Chapter 33. 38 U.S.C. §§ 3231, 3301, 3312, 3695; 38 C.F.R. §§ 21.4020, 21.5071, 21.5072, 21.9520 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from May 1979 to May 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 determination of the VA Regional Office (RO) in Buffalo, New York, that the Veteran had only 22 months and 21 days of entitlement to Post-9/11 GI Bill benefits because he had previously used 25 months and 9 days of entitlement under the Post-Vietnam Era Veterans' Educational Assistance Program (VEAP), Chapter 32, United States Code. The Veteran disagreed with the RO's determination that he had previously used 25 months and 9 days of entitlement under the VEAP, stating that he had only used approximately 6 months of benefits under the VEAP. On September 15, 2021, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. The instant matter was then previously before the Board in January 2022, at which time it was remanded for further development. Specifically, the matter was remanded for the agency of original jurisdiction (AOJ) to associate with the claims folder all records pertaining to the Veteran's application for and use of educational assistance benefits under Chapter 32. Upon completion of that development, the AOJ issued a supplemental statement of the case (SSOC) in which it continued to deny the Veteran's claim for additional VA educational assistance benefits under the Post-9/11 GI Bill in excess of 22 months and 21 days. The matter was thereafter returned to the Board for further appellate review. Regarding representation, the Board notes that it was previously indicated that the Veteran was represented by the Alabama Department of Veterans Affairs. Via letter dated in October 2022, however, the Veteran was informed that there was no VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, on file appointing Alabama Department of Veterans Affairs as the Veteran's representative. The Veteran was provided with information regarding appointing a representative, along with the necessary VA forms, and was informed that if he did not respond within 30 days, the Board would assume that he wished to represent herself. To date, no response has been received. As such, the Board recognizes the Veteran as proceeding pro se in this appeal. The Board also notes that in his notice of disagreement (NOD), the Veteran requested a refund of educational contributions made pursuant to the MGIB. The record shows that in June 2012, the Veteran was issued a refund of $756.57 for unused basic contributions to the MGIB program. In a September 2012 VA Form 9, the Veteran confirmed that he received a refund in the amount of $756.57 on July 17, 2012; the Veteran expressed his belief, however, that that amount corresponded to only a partial refund of his Chapter 30 contributions. Liberally construed, the Board finds the Veteran's statement sufficient to constitute an NOD as to the amount of Chapter 30 contributions refunded. However, because the RO has not yet issued a statement of the case (SOC) with respect to whether the Veteran is entitled a refund of MGIB contributions in excess of $756.57, the next step in the appellate process, the issue of entitlement to a refund in excess of $756.57, for unused basic contributions to the MGIB, must be remanded to the RO for the issuance of a SOC. See 38 C.F.R. § 19.29, codifying Manlincon v. West, 12 Vet. App. 238, 240-41 (1999) (providing that in cases before the Board in which a claimant has timely filed a NOD with a determination of the AOJ on a claim, but the record reflects that the AOJ has not subsequently granted the claim in full and has not furnished the claimant with a SOC, the Board shall remand the claim to the AOJ with instructions to prepare and issue a SOC. Entitlement to Additional Chapter 33 Benefits In the instant case, the Veteran has asserted entitlement to additional VA educational assistance benefits, in excess of 22 months and 21 days, under the Post-9/11 GI Bill. Specifically, the Veteran has disagreed with the AOJ's calculation of 25 months and 9 days of previously used benefits under the VEAP. A review of the record shows that the Veteran filed an application for VA education benefits in which he stated that he was seeking to use Post-9/11 GI Bill or MGIB benefits to attend West Virginia College of Law, beginning in August 2009. In response, the AOJ informed the Veteran that he was eligible for benefits under both the MGIB and the Post-9/11 GI Bill and informed him that he needed to elect which program he desired to receive benefits under. On December 7, 2009, the Veteran stated that he wished to received VA educational assistance benefits under the Post-9/11 GI Bill. Via letter dated December 21, 2009, the Veteran was informed that he had been awarded benefits under the Post-9/11 GI Bill and that he was entitled to receive 100 percent of the benefits payable. Although that letter did not specify the Veteran's total entitlement under the Post-9/11 GI Bill, other documents of record show that it was initially determined that the Veteran had 36 months of entitlement under that program. The record then shows that the Veteran used Chapter 33 educational assistance benefits to pursue a juris doctor program at West Virginia University. Via letter dated June 7, 2011, the Veteran was informed that, as of August 5, 2011, he had 12 months and 25 days of Post-9/11 GI Bill benefits remaining, and that he had until June 1, 2024, to use those benefits. However, via letter dated July 5, 2011, the Veteran was informed that, upon review of his records, it had been discovered that he had previously used 25 months and 9 days of entitlement under the VEAP, which reduced his total entitlement under the Post-9/11 GI Bill to 22 months and 21 days. The Veteran was notified that due to this change, he had exhausted his entitlement under the Post-9/11 GI Bill as of July 22, 2011, and therefore benefits could not be paid for the term running from August 22 to December 17, 2011. The Veteran disagreed with this determination. Specifically, although the Veteran acknowledged using benefits under the VEAP to partially fund a flight training program, he stated that he had used VEAP benefits only during the period from January 30, 1996, through July 23, 1996, and asserted continued entitlement to benefits under the Post-9/11 GI Bill. In his VA Form 9, the Veteran stated his belief that he is entitled to 36 months of benefits under the Post-9/11 GI Bill in addition to the previously used benefits under the VEAP, provided that the total benefits received do not exceed 48 months, and that, according to his calculations, he had 13 months and 10 days of entitlement remaining under the Post-9/11 GI Bill. Relevant to the issue on appeal, the law provides that under Chapter 32, Title 38, United States Code, all veterans who entered active duty after January 1, 1977, and before July 1, 1985, are eligible to participate in the VEAP by enrolling during their period of active service. One who enrolls and participates in the program agrees to have a monthly deduction made from his or her military pay of not less than $25.00 and no more than $100.00. Each monthly contribution made by a participant entitles the participant to matching funds from the Department of Defense (DoD) at the rate of $2 for each $1 contributed by the participant. The maximum total contribution allowed per person is $2,700. 38 U.S.C. § 3222(a),(b), (e). Relevant evidence shows that the Veteran chose to enroll and participate in the VEAP. Here, the Veteran has argued that he made contributions in the maximum amount of $2,700, which would have entitled him to $8,100 in educational assistance under the VEAP. However, a "Ch[apter] 32 Participant Contribution History" statement shows that the Veteran contributed only $1,750.79, entitling him to $5,252.37 in educational assistance under the VEAP. The record also shows that the Veteran made contributions pursuant to the MGIB in the amount of $1,200.00. The Board acknowledges the Veteran's assertion that he contributed the maximum $2,700 to the VEAP. The evidence of record, however, does not reflect that to be the case. Rather, it is shown that from April 1985 to May 1987, the Veteran contributed $69.00 a month and that in June 1987, he contributed $25.00. This amounts to $1,750.00. Further, any disagreement as to the amount of contributions made is not the subject of this appeal and does not bear on the outcome of this appeal, as the issue on appeal centers on how many months of entitlement the Veteran had used under the VEAP, and not whether he has any remaining entitlement under the VEAP. In this regard, the Board notes that under the VEAP, VA will credit an individual with 1 month of entitlement for each month he or she contributes to the fund up to a maximum of 36 months or its equivalent in part-time training. 38 C.F.R. § 21.5071(a). Generally, once the individual is enrolled, VA will make a charge against entitlement for full-time students, one month's entitlement for each monthly benefit paid to him or her. 38 C.F.R. § 21.5072(a)(1)(i). For flight training courses, a charge against the period of entitlement will be one month for each sum of money paid equivalent to the dollar value of a month of entitlement as determined under 38 C.F.R. § 21.5138(a)(5)(viii). When this computation results in a period of time other than a full month, the charge will be prorated. The Board notes that the actual dollar amount paid during each month of eligibility earned is determined based on a complex formula, which does not equal to a dollar-for-dollar amount. See 38 C.F.R. § 21.5138. In the instant case, a "C[hapter 32 Benefit History" statement shows payments of VEAP benefits for flight training in the following amounts: (1) $5.19 on February 5, 1997; (2) $1,499.85 on February 12, 1997; (3) $1,499.85 on February 24, 1997: (4) $1,499.85 on March 8, 1997; and (5) $747.63 on March 12, 1997; this equals $5,252.37 of VEAP benefits pays. The record also shows that the amounts outlined above corresponded to .025, 7.22265, 7.22265, 7.22265, and 3.60030 months of entitlement used, respectively; this equals 25.29 months of entitlement used, or 25 months and 9 days. Specifically, as explained in the supplemental SOC (SSOC), the full-time rate for benefits in 1997 was $207.68 per month. That number was calculated based on the formula of contribution amount ($1,750.79) multiplied by 3 ($5,252.37) and then divided by 25.29 (number of months of entitlement charged), which equaled $207.68 per month. Thus, the Veteran was charged one month of entitlement for each $207.68 which was issued. Here, although the Veteran asserts that he utilized VEAP benefits for flight training during the period from January to July 1996, printouts from the Benefits Delivery Network (BDN), which is VA's main processing system for all awards and related actions and which generates the payment information that is sent to the United States Treasury where benefit checks are produced, show that payments under the VEAP were made in 1997 and that the total amount of those payments equaled $5,252.37. There is no dispute as to the amount of benefits paid, or that the Veteran utilized VEAP benefits for flight training. Rather, the Veteran disagrees with how VA calculated the number of months of entitlement used under the VEAP. It would appear that the Veteran believes that the amount of entitlement charged should be based on the actual months of education he received. However, the Board notes that VA regulations provide a specific, yet complex, formula for how to charge an individual for his monthly entitlement benefits under the VEAP. The Board does not have the authority to recalculate the Veteran's use of Chapter 32 educational assistance benefits under a different standard. The Board also finds no error with regard to the AOJ's determination that the Veteran used 25 months and 9 days of entitlement under the VEAP. See 38 C.F.R. § 21.5138. In so finding, the Board notes that, pursuant to the Board's January 2022 remand action, the AOJ obtained and associated with the claims file the Veteran's service personnel records. In a March 2022 letter, VA notified the Veteran that in compliance with the Board's remand directives, they obtained a copy of his Military Services' Official Military Personnel File. The AOJ noted, however, that those records do not contain relevant information regarding the Veteran's flight training conducted during active duty. Rather, it was clarified that while the SOC reflected that the determination regarding the Veteran's use of VA educational assistance benefits was based, in part, on review of information received from the DoD, the previous reliance on DoD records was only for purposes of establishing the Veteran's active duty service and any entitlement to VA benefits. It was also noted that VA records are relied on for evidence of the months of entitlement that the Veteran is eligible for, and that the decision should have stated that it relied on the Veteran's VA education records in deciding his claim. Accordingly, as the BDN printouts show the amount of benefits paid under the VEAP for the Veteran's flight training, the Board finds no reason to dispute the AOJ's finding that the Veteran used 25 months and 9 days of entitlement under the VEAP. In light of this determination, the Board finds that there is no legal basis to award the Veteran more than 22 months and 21 days of entitlement to VA educational assistance benefits under the Post-9/11 GI Bill. This is so because, under governing law, an eligible individual is entitled to a maximum of 36 months of educational assistance (or its equivalent in part-time educational assistance) under the Post-9/11 GI Bill. 38 C.F.R. § 21.9550. However, where an individual is eligible for two or more education programs, the aggregate period for which any person may receive assistance may not exceed 48 months (or the part-time equivalent). 38 U.S.C. § 3695(a); 38 C.F.R. § 21.4020. This statutorily mandated restriction applies specifically to benefits received under "38 U.S.C. chapters 30, 32, 33, 34, 35, and 36." 38 U.S.C. § 3695(a)(4); 38 C.F.R. § 21.4020(a)(4). Thus, although the Veteran was eligible for both Chapter 32 and Chapter 33 educational assistance benefits, the law is clear that the aggregate number of months an eligible claimant is entitled to receive is 48 months. Here, as the Veteran utilized 25 and 9 days of benefits under Chapter 32, his entitlement to benefits under Chapter 33 is capped at 22 months and 21 days. Therefore, by law, the Veteran's claim for VA educational assistance benefits under Chapter 33 (the Post-9/11 GI Bill) in excess of 22 months and 21 days must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND As discussed above, the Veteran's September 2012 VA Form 9 is sufficient to constitute an NOD as to the amount of Chapter 30 contributions refunded. However, because the RO has not yet issued a SOC with respect to whether the Veteran is entitled a refund of MGIB contributions in excess of $756.57, the next step in the appellate process, the issue of entitlement to a refund in excess of $756.57, for unused basic contributions to the MGIB, must be remanded to the RO for the issuance of a SOC. 38 C.F.R. § 19.29; see Manlincon, supra. (Continued on the next page.) The matters are REMANDED for the following action: Furnish to the Veteran an SOC addressing the issue of entitlement a refund of MGIB contributions in excess of $756.57, along with a VA Form 9, and afford him the appropriate opportunity to file a substantive appeal perfecting an appeal on this issue. M. Donohue 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.