Citation Nr: 22068320
Decision Date: 12/12/22	Archive Date: 12/12/22

DOCKET NO. 15-38 869A
DATE:  December 12, 2022

ORDER

Entitlement to an extension of the transfer end date for Department of Veterans Affairs (VA) educational assistance transferred under Chapter 33 (Post-9/11 GI Bill), beyond August 1, 2012, is denied.

FINDING OF FACT

The service department verified the eligibility of the appellant to receive a transfer of the Veteran's Chapter 33 Education Benefits; and the Veteran chose a transfer end date for these benefits of August 1, 2012.

CONCLUSION OF LAW

The criteria for entitlement to an extension of the transfer end date for VA educational assistance transferred under the Post-9/11 GI Bill beyond August 1, 2012, are not met. 38 U.S.C. §§ 3311, 3319; 38 C.F.R. §§ 21.9520, 21.9530, 21.9570.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from October 2004 to February 2006 and from January 2008 to February 2009. He died in April 2011. The appellant is his surviving spouse.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2015 determination by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The record shows that the appellant was scheduled to testify before the Board in September 2018 and November 2022 pursuant to her November 2015 request for a Board hearing. However, she failed to report to these hearings without showing good cause and she has not requested that the hearings be rescheduled. Consequently, the Board finds that the appellant's hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). 

An individual is eligible for educational assistance under the provisions of the Post-9/11 GI Bill if, among other things, commencing on or after September 11, 2001, he or she serves an aggregate of at least 90 days on active duty in the Armed Forces (excluding entry level and skill training), and continues on active duty. 38 U.S.C. § 3311(b)(8); 38 C.F.R. § 21.9520(a)(1). 

An individual entitled to educational assistance under 38 U.S.C. Chapter 33 based on his or her own active-duty service, and who is approved by a service department to transfer entitlement, may transfer up to a total of 36 months of his or her entitlement to a dependent (or among dependents). 38 C.F.R. § 21.9570. An individual approved by his or her military department to transfer entitlement may do so only while serving as a member of the armed forces when the transfer is executed. 38 U.S.C. § 3319(f)(1); 38 C.F.R. § 21.9570(c).

An individual transferring entitlement under this section must: (i) Designate the dependent or dependents to whom such entitlement is being transferred; (ii) Designate the number of months of entitlement to be transferred to each dependent; and (iii) Specify the beginning date and ending date of the period for which the transfer is effective for each dependent. VA will accept the transferor's designations as shown on any document signed by the transferor that shows this required information. 38 C.F.R. § 21.9570(d).

In this case, information from VA/Department of Defense Identity Repository (VADIR) in March 2015 shows that the Veteran requested to transfer 36 months of his Chapter 33 education benefits to the appellant in July 2009, with August 1, 2009, as the beginning transfer date for the benefits and August 1, 2012, as the end transfer date for the benefits. This information also shows that the Veteran's request was approved.

In August 2009, the appellant applied for transfer of entitlement (TOE) benefits to pursue an Associate of Science Degree at Barstow Community College. She reported on the application that the program commenced in August 2007 and that she was still attending the college. 

An October 2009 Certificate of Eligibility (COE) shows that the appellant was awarded Chapter 33 benefits under TOE and that she had 36 months of benefits at the 80 percent rate of pay. See 38 C.F.R. §21.9640. It also shows that she would remain eligible under the Post-9/11 GI Bill until February 23, 2024, which was 15 years from the date of the Veteran's last separation from active duty. Subsequent COEs including one in November 2009 and another one in February 2013 similarly show that the appellant remained eligible under the Post 9/11 GI Bill until February 23, 2024.

The appellant appeals the March 2015 decision that denied her March 2015 application for Chapter 33 TOE benefits to pursue a certificate to become an esthetician at a beauty school. The basis of the denial is that her eligibility period for TOE benefits ended on August 1, 2012.

The appellant asserted in the July 2015 notice of disagreement and November 2015 substantive appeal that the Veteran was killed in Afghanistan two months prior to her completion of an associate degree in 2011 and she ended up graduating in December 2011 after requesting an extension. She explained that she had been emotionally unable to return to school up until the point of her 2015 application. She added that she and the Veteran had discussed the fact that he wanted her to continue her education and she pointed out that that he transferred all 36 months of his Chapter 33 benefits to her. She asserted that the end transfer date of August 1, 2012, was made in error and that the Veteran would never have intentionally put an ending date to these benefits. She requested proof of this date and that her benefits be fully reinstated. She also noted that her COE in February 2013 informed her that she would remain eligible for the benefits until February 2024.

While the Board is grateful for the Veteran's distinguished service and is sympathetic to the circumstances of this appeal, the service department's findings showing August 1, 2012, as the end transfer date for the Veteran's Chapter 33 benefits to the appellant are conclusive and binding on VA. See Duro v. Derwinski, 2 Vet. App. 530 (1992); Dacoron v. Brown, 4 Vet. App. 115, 120 (1993). To the extent that the appellant questions the accuracy of this date, the appellant's only recourse lies within the relevant service department, not with VA. 

Regarding the fact that the appellant was informed in the COEs that she was eligible to use the Chapter 33 benefits until February 2024, the Board admits that this is misleading. While 15 years from the date of a Veteran's separation from service is the maximum eligibility period for Chapter 33 benefits, information from VADIR shows that the Veteran in this case specified a transfer ending date of August 1, 2012, to transfer his Chapter 33 benefits to the appellant. See 38 C.F.R. §§ 21.9530(a),(d), 21.9570(b).

As to the appellant's assertion that she was not emotionally ready to return to school following the death of the Veteran until 2015, the Board notes that there is a regulatory provision that allows VA to grant an extension of Chapter 33 benefits to an individual for the period of eligibility due to disability (provided that certain conditions are met). See 38 C.F.R. §21.9535. However this provision specifically excludes the paragraphs under § 21.9530 that pertain to the time limit of a spouse or child using transferred entitlement. See 38 C.F.R. §§ 21.9530(d),(e); 21.9535(a).

To the extent that the appellant requests an extension based on equitable relief, the Board unfortunately does not have the authority to grant this claim on any sort of an equitable basis. Rather, the Board is bound by the controlling legal authority set forth above. 38 U.S.C. §§ 503, 7104(c); Darrow v. Derwinski, 2 Vet. App. 303 (1992); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Thus, the appellant's appeal must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430, (1994). 

Finally, it is pertinent to note that the Secretary of Veterans Affairs (Secretary) has discretionary authority to grant equitable relief in certain circumstances. See 38 U.S.C. § 503 (a); 38 C.F.R. § 2.7. While the Board may not act for the Secretary in the exercise of such authority, the appellant may petition the Secretary directly for consideration of equitable relief. 

 

 

Kristin Haddock

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Shawkey, 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.