Citation Nr: 23013116 Decision Date: 03/03/23 Archive Date: 03/03/23 DOCKET NO. 16-60 322 DATE: March 3, 2023 ORDER The denial of educational assistance benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill or Chapter 33) for Fall 2016 was proper. Entitlement to more than 48 months of combined VA educational assistance benefits is denied. FINDINGS OF FACT 1. The Veteran has used 31 months and 26 days of Chapter 33 Post-9/11 educational assistance, and 18 months and 19 days of Chapter 31 VR&E assistance. 2. VA laws and regulations state that the Veteran cannot receive more than 48 months of VA educational assistance benefits under a combination of programs, to include under Chapter 31 VR&E and Chapter 33 Post-9/11 GI Bill programs. CONCLUSION OF LAW The criteria for entitlement to additional VA educational assistance benefits under Chapter 33 (Post-9/11 GI Bill) have not been met. 38 U.S.C. §§ 3013, 3105, 3311, 3319, 3695; 38 C.F.R. § 21.70, 21.78, 21.4020, 21.7072, 21.9550. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Marine Corps from December 1979 to December 2012. The Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2022. A transcript of the hearing has been associated with the record. The Veteran's representative was unable to attend the November 2022 hearing, but the Veteran elected to proceed with the hearing without his representative. Whether the denial of educational assistance benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill or Chapter 33) for Fall 2016 was proper, to include whether the Veteran is entitled to more than 48 months of combined entitlement At the November 2022 hearing, the Veteran testified that, in June 2016, he enrolled at an educational institution for the fall session from August to October 2016. At that time, the Veteran believed he had three months and four days of Chapter 33 benefits remaining, based on an October 2015 letter and on the e-benefits website. The Veteran's claim for education benefits for the Fall 2016 term was denied because he had exhausted his 48 months of entitlement. The Veteran contends that he would not have gone back to school if he had known about the 48 month cap, and has asked for an extension of his benefits beyond the 48 month limit. Although the Board is sympathetic to the Veteran's situation, including that he took time away from employment and school to care for his wife during an illness, the Board is bound by the law and is without authority to grant benefits on an equitable basis. Legal Criteria Generally, an individual entitled to basic educational assistance under Chapters 33 is entitled to 36 months of educational assistance benefits. 38 U.S.C. § 3013(a)(1); 38 C.F.R. §§ 21.7072, 21.9550(a). Individuals entitled to vocational rehabilitation under Chapter 31 are entitled to 48 months of educational assistance unless the Secretary of VA determines, under certain circumstances, that an extension of such period is necessary to enable a veteran to achieve a vocational goal, which are not applicable to the Veteran's case. 38 U.S.C. § 3105; 38 C.F.R. § 21.70, 21.78. Although an individual may be entitled to benefits under various education programs, there is a limit as to the total aggregate period for which any person may receive educational assistance under two or more educational programs. The statutes and regulations limit such educational assistance to no more than 48 months. 38 U.S.C. § 3695(a); 38 C.F.R. § 21.4020. These sections of the statutes and regulations furthermore provide specifically that no person may receive assistance under Chapter 31 in combination with assistance under any other enumerated educational programs in excess of 48 months unless the Secretary of VA determines that additional months of benefits under Chapter 31 are necessary to accomplish the purpose of a rehabilitation program in the individual case. 38 U.S.C. § 3695(b); 38 C.F.R. § 21.4020(b). Evidence and Analysis The record shows that the Veteran has received education assistance benefits under Chapter 33, has transferred some of his Chapter 33 entitlement to his dependent, and has also received assistance under Chapter 31, Veterans Readiness and Employment, also known as Vocational Rehabilitation and Employment, or "VR&E." The record contains a copy of an October 2015 letter which shows that the Veteran has three months and 4 four days of Chapter 33 entitlement remaining. However, the record shows that the Veteran was receiving VR&E assistance after October 2015. It appears that the e-benefits website did not account for the Veteran's usage of VR&E benefits in calculating the Veteran's remaining Chapter 33 entitlement. As discussed in the October 2016 Statement of the Case, at the time of the Veteran's request for educational benefits for Fall 2016, the Veteran had already used 31 months and 26 days of Chapter 33 Post-9/11 educational assistance, including entitlement transferred to his dependent, and 18 months and 19 days of Chapter 31 VR&E assistance. The Veteran has not disputed this accounting of used benefits. Under the applicable VA laws and regulations, the Veteran cannot receive more than 48 months of VA educational assistance benefits under a combination of the Chapter 31 VR&E and Chapter 33 Post-9/11 GI Bill programs. See 38 C.F.R. § 21.4020. The Board had considered whether Chapter 31 benefits may be used to pay for the Fall 2016 session. The Board notes that June 2016 correspondence from a Vocational Rehabilitation Counselor stated that no additional training was required for the Veteran to find employment at that point. Therefore, additional benefits under Chapter 31 are not warranted, as they are not necessary to accomplish the purpose the Veteran's rehabilitation program. 38 U.S.C. § 3695(b); 38 C.F.R. § 21.4020(b). The Board is sympathetic to the Veteran's reliance on information from VA that he had remaining Chapter 33 educational assistance benefits. However, VA is not liable for his reliance on said erroneous information dispensed or omitted by a VA employee. 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). The Board is bound by the applicable law and regulations. In this case, there is, unfortunately, no legal basis for granting the benefits requested by the Veteran. Accordingly, the entitlement to additional VA educational assistance benefits under Chapter 33 must be denied as a matter of law. 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). Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Casey, 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.