David A. Mays v. Eric K. Shinseki ( 2012 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-1828
DAVID A. MAYS, APPELLANT,
V.
ERIC K. SHINSEKI
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Decided June 22, 2012)
David A. Mays, Pro se.
Will A. Gunn, General Counsel; R. Randall Campbell, Assistant General Counsel; Leslie C.
Rogall, Deputy Assistant General Counsel; and Michael G. Imber, all of Washington, D.C., were on
the brief for the appellee.
Before KASOLD, Chief Judge, and DAVIS, and SCHOELEN, Judges.
SCHOELEN, Judge: Appellant David A. Mays pro se appeals an April 5, 2011, Board of
Veterans' Appeals (Board) decision in which the Board found there was no entitlement to eligibility
for educational benefits under chapters 30 and 32, title 38, U.S. Code, and chapters 1606 and 1607,
title 10, U.S. Code. Record of Proceedings (R.) at 141-47. This appeal is timely, and the Court has
jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a). For the reasons that
follow, the Court will affirm the Board's determination that the appellant is not eligible for
educational benefits under Chapters 30, 32, 1606, and 1607.
I. BACKGROUND
The appellant was a member of the Reserve Officers' Training Corps (ROTC) from
September 1971 until May 1973 at the Tuskegee Institute in Tuskegee, Alabama. R. at 57. In 1974,
upon completion of his undergraduate degree, the appellant signed an "Application for Initial Delay
from Entry on Active Duty With Supplemental Active Duty/ACDUTRA And Reserve Participation
Agreement" that sought a delay from entry on active duty until September 1977 so that he could
attend dental school. R. at 15-16. The U.S. Army approved the appellant's delayed entry in June
1974. R. at 53. In January 1975, the appellant signed a "Supplemental Active Duty and Reserve
Participation Agreement for Delayed Officers Applying For Additional Educational Delay From
Entry On Active Duty To Pursue Course of Study Leading To A Degree in Medicine, Dentistry, or
Veterinary Medicine." R. at 18. The U.S. Army approved this application for renewal of his
educational delay from active duty in May 1975. R. at 17.
The appellant's DD Form 214, Certificate of Release or Discharge from Active Duty,
indicates that he served on active duty in the U.S. Army from July 31, 1978, to July 30, 1980. R. at
102. The DD Form 214 also shows that he had more than four years of inactive service prior to 1978
and no other active service. Id. It also indicates that the appellant did not contribute to the Post-
Vietnam Era Veterans' Educational Assistance Program. Id.In December 1981, the appellant filed an application for educational benefits. R. at 57; see
also R. at 13. The regional office (RO) denied the appellant's claim because under chapter 34, title
38, U.S. Code, the appellant had to have entered active duty before January 1, 1978, and the
appellant did not enter active duty until July 31, 1978. R. at 56. In January 1982, the appellant wrote
a letter to VA asserting that he believed he was entitled to educational benefits because he contracted
with the U.S. Army for his delayed entry into active duty in 1974. R. at 54-55. He also explained
that the agreement required that he had to report any status changes to the "Commanding Officer of
the Reserve Component" and that he could have been "called to duty at any time during [his] dental
training." Id.In February 1982, VA responded to the appellant's letter and explained that "[a]lthough you
may have met the requirements for an active duty commitment, you did not meet the requirement
of entrance on active duty prior to January 2, 1978. Therefore, your claim for educational assistance
under Chapter 34 had to be disallowed." R. at 52.
Before a hearing at the RO in June 1982, the appellant argued that he was entitled to Chapter
34 benefits because his June 1974 orders used the phrase "as if being ordered to active duty at this
time." R. at 34. He also explained that when he inprocessed at Fort Bragg, North Carolina, no one
explained his entitlement to education benefits had changed because of his delayed entry and that
if someone had explained it to him, he would have "gladly contributed" to his education benefits so
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that he would have been entitled to educational benefits under Chapter 32. R. at 34-35. VA
subsequently notified the appellant that the evidence, including his testimony at the hearing, did not
warrant a change to the denial of educational benefits under Chapter 34. R. at 33.
In August 1982, VA issued a Statement of the Case (SOC) that continued denial of the
appellant's claim for entitlement to educational benefits because he had not entered active duty until
July 1978. R. at 11-14. The SOC concluded:
The evidence shows that the veteran was granted a delay from entry on active duty [on]
June 30, 1974, to allow him to pursue his study of [d]entistry. He did not enter active
military service until July 30, 1978. Since the veteran did not enter active military service
prior to January 1, 1978, he does not have qualifying service for educational benefits under
Title 38, United States Code, Chapter 34, and his claim remains denied.
R. at 14.
Later in August 1982, the appellant filed an appeal to the Board, arguing that he was entitled
to Chapter 34 benefits because his delayed entry contract was "initiated prior to the January 1978
deadline." R. at 10. He also noted that according to Army Regulation 601-110, he was "designated
as a gain to the Armed Forces at the time [he] received his commission." Id.The Board issued a decision in April 1983 stating that eligibility for educational assistance
under Chapter 34 is predicated "on the finding that the person seeking such benefits began serving
on active duty prior to January 1, 1978. Therefore, since a condition specifically set forth in the law
has not been satisfied, this Board has no other legal recourse but to deny the appellant's claim." R.
at 6. It continued that "[w]hile he could have been called to active duty at any time during his delay
status, he was not called to active duty until July 1978." Id. Therefore, the Board concluded that
"[s]ince the veteran did not begin active duty until July 1978, he is not eligible for educational
assistance under Chapter 34, Title 38, United States Code." R. at 7. That decision became final.
The appellant filed another application for VA educational benefits in January 2009. R. at
211-12. Later that month, the RO denied the appellant's claim finding that he was not eligible for
educational benefits pursuant to the Montgomery G.I. Bill (38 U.S.C. chapter 30), the Veterans'
Educational Assistance Program (38 U.S.C. chapter 32), Montgomery G.I. Bill-Selected Reserve
(10 U.S.C. chapter 1606), or the Reserve Educational Assistance Program (10 U.S.C. chapter 1607).
R. at 208-09. In February 2009, the appellant filed a Notice of Disagreement with the denial of his
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claim and stated that because he was commissioned as a second lieutenant in 1973, he should be
"grandfathered" in for an earlier active duty date. R. at 204-05. In March 2009, the RO issued an
SOC that continued the denial of the appellant's claim for educational benefits. R. at 195-202.
In April 2009, the appellant submitted his Substantive Appeal to the Board arguing that he
should be entitled to educational benefits under the Vietnam-era G.I. Bill, chapter 34, because upon
graduation he was assigned to be commissioned as a second lieutenant "if the doctor[]al program was
not completed" and that but for an annual "reserve status update" he was required to complete, he
would have been sent to active duty. R. at 187. VA then issued the "Certification of Appeal," which
listed the issue as "[d]enial of education benefits under Chapter 30, 32, 1606, 1607." R. at 171.
In October 2010, the appellant submitted a written argument and "proposed order" explaining
that because he had "contracted" with the Army prior to 1978 he should be entitled to educational
benefits and should be "grandfathered" into the Vietnam-era G.I. Bill, and "[i]n order to be 'made
whole'" he should be given the "equivalent of three years['] reimbursement." R. at 164-65.
On October 26, 2010, the appellant testified before a Board hearing. R. at 151-62. The
appellant affirmed that the issue before the Board was "entitlement to education benefits under
Chapters 30, 32, 1606 and 1607." R. at 152. He explained that when he entered active duty after
dental school he was told that he had to contribute $100 a month to be eligible for benefits. R. at
153. However, he asserted, he did not believe that the contribution requirement applied to him
because when he signed his "original contract" he was not required to contribute. R. at 154.
On April 5, 2011, the Board issued the decision on appeal, which denied the appellant's claim
for entitlement to educational benefits under chapters 30 and 32, title 38, U.S. Code, and chapters
1606 and 1607, title 10, U.S. Code. R. at 141-49. The Board found that "the Veteran can only
establish entitlement to benefits available at the time that he served." R. at 146. The Board found
that the appellant began active duty service in July 1978 and that he did not contribute to an
educational assistance program. R. at 146-47. The Board then detailed the requirements of the
different types of educational assistance programs and concluded that the appellant was not eligible
for educational benefits under any of the programs because "the applicable law and regulations as
written preclude a grant of benefits, even on an equitable basis." R. at 147.
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II. ANALYSIS
A. Educational Benefits Under Chapter 34
Throughout the appellant's brief and reply brief, he argues that the decision of the Board in
April 1983 was clearly erroneous in its denial of educational benefits under Chapter 34. See R. at
4-7. The appellant asserts that his active duty date should relate back to one of two different dates.
First, he argues that his active duty date should date back to the date that he signed a contract to join
ROTC. Appellant's Brief (Br.) at 3, Reply Br. at 1-5. Alternatively, he argues that he entered active
duty when he completed ROTC and signed the delayed entrance agreement. Appellant's Br. at 5.
During his testimony before the Board in October 2010, the appellant affirmed that the issue
was "entitlement to education benefits under Chapters 30, 32, 1606 and 1607." R. at 152. However,
throughout his testimony he argued that he should have been granted benefits under Chapter 34 when
he first applied for them in 1983. See R. at 151-62. During the hearing, the hearing officer even
stated that "the case will turn on whether or not you had entitlement to the earlier program and I have
to look into that to see what the statute require[d] at that time." R. at 158. In his reply brief, the
appellant summarized his argument as "[t]he question before this Court is: [w]as the denial of
benefits clearly erroneous given the evaluation of all the evidence." Reply Br. at 2.
It is well established that the Board is required to adjudicate all issues reasonably raised by
a liberal reading of the record, including "all documents and oral testimony in the record prior to the
Board's decision." Brannon v. West, 12 Vet.App. 32, 34 (1998); see also Robinson v. Peake,
21 Vet.App. 545, 552-56 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir.
2009). If such a review "reasonably reveals that the claimant is seeking a particular benefit, the
Board is required to adjudicate the issue of the claimant's entitlement to such a benefit or, if
appropriate, to remand the issue to the [RO] for development and adjudication of the issue; however,
the Board may not simply ignore an issue so raised." Brannon, 12 Vet.App. at 34. However, the
"Court requires that an appellant plead with some particularity the allegation of error so that the
Court is able to review and assess the validity of the appellant's arguments." Coker v. Nicholson,
19 Vet.App. 439, 442 (2006). In Fugo v. Brown, 6 Vet.App. 40 (1993), the Court held that for a
claimant "to reasonably raise CUE [clear and unmistakable error] there must be some degree of
specificity as to what the alleged error is and, unless it is the kind of error . . . that, if true, would be
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CUE on its face, persuasive reasons must be given as to why the result would have been manifestly
different but for the alleged error." Id. at 44.
The appellant has previously asserted that he is entitled to Chapter 34 benefits. However,
it is not until he submitted his brief and his reply to this Court that he specified his various theories
why he was entitled to Chapter 34 benefits, and subsequently why he believed that there was CUE
in the 1983 Board decision. See Appellant's Br. at 3 (active duty date should be date that service
member signs contract to enter ROTC); Appellant's Br. at 5 (active duty date should be graduation
date); R. at 155, 161 (VA representatives were biased in making their decision); R. at 165 (he should
be "grandfathered" in). Because the April 1983 Board decision became final, the appellant may
challenge the decision only through a motion to revise that decision on the basis of CUE. See Cook
v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc) (an appellant generally can attempt to
overcome the finality of a prior final decision of the RO or Board in one of two ways: (1) by a
request for a revision of an RO or Board decision based on CUE, or (2) by a claim to reopen based
upon new and material evidence). The Court has no jurisdiction to consider a particular claim of
CUE in the first instance. See 38 U.S.C. § 7252(a); Andre v. Principi, 301 F.3d 1354, 1361 (Fed.
Cir. 2002) (holding that "each 'specific' assertion of CUE constitutes a claim that must be the subject
of a decision by the [Board] before the Veterans Court can exercise jurisdiction over it"); Russell v.
Principi, 3 Vet.App. 310, 315 (1992) (en banc) (noting that the "necessary jurisdictional 'hook' for
this Court to act is a decision of the [Board] on the specific issue of 'clear and unmistakable error'").
Accordingly, to the extent that the appellant believes that there is CUE in the 1983 Board decision,
the appropriate procedure is to file a motion for revision of the decision at the Board. 38 C.F.R.
§ 20.1404 (2011).
B. April 2011 Board Decision
1. Active Duty Date
The appellant asserts that his active duty date should relate back to the date that he signed
a contract to join ROTC (1972) or the date he completed ROTC and signed the delayed entrance
agreement (1974). Appellant's Br. at 3, 5; Reply Br. at 1-5. To the extent that Mr. Mays makes these
assertions in support of his contention that he is entitled to educational benefits under Chapter 34,
the Board denied such entitlement in its April 1983 decision. That decision is not before the Court
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and, as noted above, may be challenged only through a motion to revise that decision on the basis
of CUE. Cook, supra.
Even assuming that the appellant's active duty began in 1972 or 1974, based on the following
analysis, the Board's determination that the appellant was not entitled to educational benefits under
Chapters 30, 32, 1606, and 1607 is not clearly erroneous. Gilbert v. Derwinski, 1 Vet.App. 49, 52
(1990) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)) ("'A finding is "clearly
erroneous" when although there is evidence to support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mistake has been committed.'"); see also R. at 142.
2. Educational Benefits Under Chapter 30
Chapter 30 educational benefits are available to a veteran who "first becomes a member of
the Armed Forces or first enters on active duty as a member of the Armed Forces" after June 30,
1985. 38 U.S.C. § 3011(a)(1)(A); 38 C.F.R. § 21.7130 (2011). Chapter 30 benefits are also
available to some veterans who previously were entitled to Chapter 34 benefits. The Chapter 34
educational benefits program, known as the Vietnam-era G.I. Bill, was ended for all eligible veterans
effective December 31, 1989. 38 U.S.C. § 3462(e). Veterans who had Chapter 34 eligibility
remaining on December 31, 1989, could attempt to establish eligibility for educational assistance by
showing that they served on active duty at any time between October 19, 1984, and July 1, 1985, and
continued on active duty without a break in service for three years after June 30, 1985, or were
discharged after June 30, 1985, for a service-connected disability, preexisting medical condition not
recognized as a disability, hardship, or convenience of the Government. 38 U.S.C. § 3011(a)(1)(B).
Additionally, a veteran who was eligible for Chapter 34 educational benefits as of December 31,
1989, but was not on active duty on October 19, 1984, could maintain eligibility by reenlisting or
reentering a period of active duty after October 19, 1984, and on or after July 1, 1985, either having
served at least three years of continuous active duty, or having been discharged after June 30, 1985,
for a service-connected disability, preexisting medical condition not recognized as a disability,
hardship, or convenience of the Government. 38 U.S.C. § 3011(a)(1)(C).
The appellant's Substantive Appeal to the Board states that he is appealing his "[e]ntitlement
to education benefits under Chapter 30, Title 38, United States Code." R. at 175. He also asserts
in his brief that he met the "basic obligated contracted eligibility criteria for the receipt of educational
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assistance benefits pursuant to Chapter[] 30, Title 38, United States Code." Appellant's Br. at 12.
The Board found that the appellant completed his active duty service in July 1980, which
meant that he was not eligible for Chapter 30, Montgomery G.I. Bill benefits under 38 U.S.C.
§ 3011(a)(1)(A). The Court agrees.
"'Statutory interpretation begins with the language of the statute, the plain meaning of which
we derive from its text and structure.'" Myore v. Nicholson, 489 F.3d 1207, 1211 (Fed. Cir. 2007)
(quoting McEntee v. M.S.P.B., 404 F.3d 1320, 1328 (Fed. Cir. 2005)); see Sharp v. Shinseki, 23
Vet.App. 267, 271 (2009); see also McGee v. Peake, 511 F.3d 1352, 1356 (Fed. Cir. 2008); Gardner
v. Derwinski, 1 Vet.App. 584, 586 (1991) ("Determining a statute's plain meaning requires
examining the specific language at issue and the overall structure of the statute." (citing Bethesda
Hosp. Ass'n v. Bowen, 485 U.S. 399, 403-05 (1998))), aff'd sub nom. Gardner v. Brown, 5 F.3d 1456(Fed. Cir. 1993), aff'd, 513 U.S. 115, 115 (1994). "When a court reviews an agency's construction
of the statute which it administers. . . . [f]irst, always, is the question whether Congress has directly
spoken to the precise question at issue." Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 842 (1984). If Congress had directly spoken to the issue, then the Court and the
agency must both "give effect to the unambiguously expressed intent of Congress." Id. at 842-43.
In section 3011 of chapter 30, title 38, U.S. Code, Congress specifically stated that benefits
are available to a person who "first becomes a member of the Armed Forces or first enters on active
duty as a member of the Armed Forces" after June 30, 1985." Therefore, it is clear from the plain
language of the statute that to be eligible for benefits under chapter 30, the appellant would have
have entered the Armed Forces after June 30, 1985. Consequently, the Court must "give effect" to
the intent of Congress and follow the language of the statute. Chevron U.S.A., Inc., supra.
Here, the appellant separated from active duty on July 30, 1980. R. at 191. Therefore, the
appellant did not have active duty service during any applicable time for Chapter 30 benefits, under
38 U.S.C. §§ 3011(a)(1)(A), (B), (C). R. at 191. Consequently, the Board's finding is not clearly
erroneous. Celano v. Peake, 22 Vet.App. 341, 347-48 (2009) (noting that findings related to
educational benefits are factual); Gilbert, 1 Vet.App. at 52.
The appellant also argued that the Board did not provide an adequate statement of reasons
and bases as to why he was not entitled to education benefits. Appellant's Br. at 7. The Board
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explained the legal criteria for a veteran to be eligible for educational benefits under Chapter 30.
R. at 144. Then, the Board explained that because the appellant's active duty service concluded
before the applicable time period he was not eligible for Chapter 30 educational benefits. R. at 146.
The Court therefore discerns no error in the Board's statement of reasons or bases for this finding.
3. Educational Benefits Under Chapter 32
To be eligible for educational benefits under Chapter 32, the Post-Vietnam Era Veterans'
Educational Assistance Program, a person entering military service between January 1, 1977, and
June 30, 1985, had to enroll in the program for at least 12 consecutive months and agree to a monthly
deduction from their military pay. 38 U.S.C. §§ 3221(a), 3222(a); 38 C.F.R. §§ 21.5040(a),
20.5052(a) (2011).
The appellant argues that he was "erroneously denied educational assistance due to the
misapplication of a . . . contribution directive enacted after his anteceding contractual commitment
in September 1972." Appellant's Br. at 3. The Board found that the appellant was not eligible for
education benefits under Chapter 32 because, although he "served between December 31, 1976, and
July 1, 1985, he did not contribute to an educational assistance program from his military pay during
his period of service." R. at 146. The Court holds that the Board's finding is not clearly erroneous.
In sections 3221 and 3222, chapter 32, title 38, U.S. Code, Congress specifically stated that
to be eligible for benefits, a veteran had to enroll in the program for at least 12 consecutive months
and agree to monthly deductions from his or her military pay. Therefore, it is clear from the plain
language of the statute that to be eligible for benefits under Chapter 32, the appellant would have
to have contributed to the educational assistance program. Consequently, the Court must "give
effect" to the intent of Congress. Chevron U.S.A., Inc., supra.
Here, regardless of the nature of the appellant's service between January 1977 and June 1985,
he admits that he did not enroll in the program or make monthly contributions from his military pay.
During his hearing before the Board, the appellant testified that when he came onto active duty he
was told that he had to make a monthly contribution if he wanted to receive educational benefits;
however, he did not contribute because he believed that he was entitled to Chapter 34, Vietnam-era
educational benefits, which did not require a contribution to participate. R. at 153-54.
The appellant points to no authority that would entitle him to educational benefits under
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Chapter 32 without his having contributed to the program. Therefore, because he does not dispute
that he did not make monthly contributions, the Board's finding that he is not eligible for the Post-
Vietnam Era Veterans' Educational Assistance Program is not clearly erroneous. See Celano,
22 Vet.App. at 347-48; Gilbert, 1 Vet.App. at 52.
As to the appellant's argument that the Board did not provide an adequate statement of
reasons and bases why he was not entitled to education benefits, the Court finds the appellant's
argument unavailing. See Appellant's Br. at 7. The Board explained the criteria for a veteran to be
eligible for educational benefits under Chapter 32. R. at 145. The Board then explained that
because the appellant had not contributed to an educational assistance program from his military pay
during his period of service he was not entitled to Chapter 32 educational benefits. R. at 146. The
Court finds no error in the Board's statement of reasons or bases for its determination.
4. Educational Benefits Under Chapter 1606 and Chapter 1607
To be eligible for educational benefits under chapter 1606, title 10, U.S. Code, a veteran after
June 30, 1985, had to enlist, reenlist, or extend an enlistment in the Selected Reserves for six years
or more or serve as a Reserve Officer in the Selected Reserve for not less than six years in addition
to any other obligation. 10 U.S.C. § 16132; 38 C.F.R. § 21.7540 (2011). Eligibility under chapter
1607, title 10, U.S. Code, extends to those who were members of a Reserve component after
September 11, 2001, who served on active duty in support of a contingency operation for 90
consecutive days or more, or who performed full-time National Guard duty for more than 90 days
for the purpose of responding to a national emergency declared by the President. 10 U.S.C. § 16163;
38 C.F.R. § 31.9520 (2011).
The Board also found that the appellant was not entitled to educational benefits under
Chapter 1606, the Montgomery G.I. Bill – Selected Reserve, or Chapter 1607, the Reserve
Educational Assistance Program. R. at 147.
At section 1632, chapters 1606, title 10, U.S. Code, Congress expressly stated that to be
eligible for benefits, a veteran had to be a member of the Selected Reserve after 1985. 10 U.S.C.
§ 16132; 38 C.F.R. § 21.7540. To be eligible for Chapter 1607 benefits, Congress expressly stated
that the veteran had to be a member of a Reserve component or the National Guard. Therefore, it
is clear from the plain language of the statute that the appellant would have had to have been a
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member of the Reserve or National Guard sometime after 1985 for him to be eligible for benefits
under Chapters 1606 or 1607. Consequently, since Congress had spoken on the issue directly, the
Court must defer to its intent. Chevron U.S.A., Inc., supra.
Here, the appellant's active duty military service ended in July 1980 and there is no evidence
in the record that the appellant was a member of the Selected Reserve or the National Guard after
his active duty service. Therefore, the Board's finding that the appellant was not entitled to
educational benefits under Chapters 1606 and 1607 is not clearly erroneous. See Celano,
22 Vet.App. at 347-48; Gilbert, 1 Vet.App. at 52. The Board's finding that the appellant was not
entitled to Chapter 1606 or 1607 educational benefits was supported by an adequate statement of
reasons and bases. The Board detailed the legal criteria for eligibility for benefits under each
program, and then explained that because there is no evidence that the appellant served in the
Reserve or National Guard after his active duty time he is not eligible for the benefits. Therefore,
the Court ascertains no inadequacies in the Board's statement of reasons or bases to support its
finding.
5. Other Arguments
The appellant also argues that his due process rights were violated because a May 31, 2011,
response to a second motion for reconsideration did not state that the Board member responding
"reviewed and considered all of the evidence." Appellant's Br. at 6. Finally, the appellant argues
that the Board erred by not applying the "benefit of the doubt" doctrine. Id. at 8.
The Secretary responds that the May 31, 2011, letter was not a Board decision, but instead
a letter from the Board that denied the appellant's motion for reconsideration of the April 2011 Board
decision, and as such, there was no requirement to review and reconsider all of the evidence.
Secretary's Br. at 13. With respect to the appellant's due process rights generally, the Secretary
argues that the Board found that the appellant's due process rights had been satisfied because he had
been "accorded ample opportunity to present evidence and argument in support of his appeal." Id.
at 14; see also R. at 144. Finally, the Secretary responds that the benefit of the doubt doctrine was
not applicable in this case because the "law is dispositive in this case." Secretary's Br. at 14.
The appellant's arguments that he was not afforded due process are without merit. The record
shows that the appellant was given the opportunity to present evidence and arguments in support of
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his appeal, and therefore no general due process right was violated. See Thurber v. Brown,
5 Vet.App. 119, 122-123 (1993) (citing Matthews v. Eldridge, 424 U.S. 319, 333 (1976)). As to the
argument that the appellant's due process rights were violated by the Board's May 31, 2011, denial
of his motion for reconsideration, the Court is not persuaded. If the Chairman denies the appellant's
motion for reconsideration, the appellant may not ordinarily appeal that denial because that is an
action that the Court generally cannot review. See Murillo v. Brown, 10 Vet.App. 108, 110-11
(1997). Instead, the appellant's proper course of action is to appeal the Board decision to this Court,
as the appellant has done here. Therefore, the appellant's due process rights were not violated by any
purported failure of the Board Chairman to review and reconsider all of the evidence because he was
denying the appellant's motion for reconsideration.
As to the appellant's argument that the Board erred by not providing him with the benefit of
the doubt, the Court is not persuaded. Pursuant to 38 C.F.R. § 3.102 (2011), any reasonable doubt
must be resolved in favor of the appellant "[w]hen there is an approximate balance of positive and
negative evidence regarding any issue material to the determination of a matter." See also 38 U.S.C.
§ 5107(b). However, because the Board determined that the law precluded a grant of benefits, this
rule does not apply. See Sabonis v. Brown, 6 Vet.App. 426, 429-30 (1994) (holding that where law
and not evidence is dispositive, the claim should be denied or the appeal terminated because of lack
of legal merit or lack of entitlement under the law).
III. CONCLUSION
After consideration of the appellant's and the Secretary's pleadings, and a review of the
record, the Court AFFIRMS the Board's April 5, 2011, decision that denied educational benefits
under Chapters 30, 32, 1606, and 1607.
Copies to:
David A. Mays
VA General Counsel (027)
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