BVA9503217 DOCKET NO. 92-20 801 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Whether the veteran’s application for educational assistance under Section 207 of Public Law 101-366 was timely filed. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD William Harryman, Counsel INTRODUCTION The veteran had active service from June 1978 to January 1989. He acts as his own representative in this matter. This case came before the Board of Veterans’ Appeals (Board) on appeal from a determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire, confirmed by the RO in Newark, New Jersey, where the veteran resides. In February 1992 the RO informed the veteran that his application for VA educational assistance under the provisions of Section 207 of Public Law 101-366 was received after the statutory deadline, and that, therefore, such benefits were denied. The Board notes that a personal hearing was held before a Member of the Board in Newark, New Jersey, in November 1992. Because that Member is no longer employed at the Board, the veteran was offered the opportunity for another personal hearing. In January 1995, the veteran responded that he did not want an additional hearing. CONTENTIONS OF APPELLANT ON APPEAL The appellant asserts that his application for Section 207 benefits was mailed on December 30, 1991, and that there was no reason that it should not have been received by VA prior to the December 31, 1991, deadline for applying for such benefits. He also argues, in the alternative, that he was not informed by VA of the availability of those benefits to permit him to apply for them in a timely fashion. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran’s claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran’s application for Section 207 VA educational assistance benefits was not timely filed. FINDING OF FACT The veteran’s application for educational assistance under Section 207 of Public Law 101-366 was received by VA on January 3, 1992. CONCLUSION OF LAW The veteran’s application for educational assistance under Section 207 of Public Law 101-366 was not timely filed. Pub. L. 101-366, § 207, 104 Stat. 442 (Aug. 15, 1990); 38 C.F.R. §§ 3.1(r), 21.1032(c), 21.4701, 21.4704 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION The pertinent facts of this case are relatively few and uncontroverted. On December 30, 1991, the veteran "mailed" an application for VA educational assistance benefits under Section 207 of Public Law 101-366 at his employer’s mailroom. (The record reflects that the veteran resided in New Jersey at that time.) He sent the application to the Newark, New Jersey, VA RO because of its proximity and his previous one-day mail service in communicating with that office. The veteran’s application is date-stamped as having been received by VA on January 3, 1992. On February 4, 1992, the veteran was notified by the Manchester, New Hampshire, RO that his application was received on January 3, 1992, after the January 1, 1992, deadline, and, therefore, the benefits sought were denied. The veteran appealed. A personal hearing was held before a Member of the Board at the RO in Newark in October 1992. At that hearing, the veteran testified that he had learned very belatedly from a friend about the availability of the stated benefits, rather from VA, despite his frequent communication with the Newark RO about other educational benefits. He indicated that he felt that VA should have notified him when the law was passed providing for the stated benefits. The veteran reported that he left the envelope containing his completed application in his employer’s mailroom the morning of December 30, 1991, where he was told that it would not be mailed until the next day. He testified that previous communications from the Newark RO had been received by him in one day. The veteran also indicated that he felt that receipt of the application by the Postal Service should be sufficient to meet the requirements of the law. In January 1993, the Board remanded the case in order to obtain additional information from the RO. Responses were received from the Support Services Division of both the Newark, New Jersey, and Manchester, New Hampshire, RO's. The responses concerned the identity of the RO which received the veteran’s application and the procedures that RO utilized regarding date-stamping incoming mail. The information obtained indicates that the application was received by the Newark RO, which applied the January 3, 1992, date stamp. Additionally, that RO’s procedures provide that incoming mail is usually date- stamped on the day it is received in the mailroom. However, in the event that incoming mail levels or staffing levels do not permit same-day date-stamping, the tub of mail is marked as having been received on the appropriate day, and, on the following day, the mail is date-stamped as having been received on the day it was actually received. From this information, the Board finds that the veteran’s application was date-stamped on the day it was received by VA: January 3, 1992. However, 38 C.F.R. § 21.4701 specifically provides a basic threshold criterion for the claimed benefits, in that it states that "[e]ach individual ... who wishes to receive a payment as provided [under Section 207], shall file an application with VA on or before December 31, 1991. The application shall be in the form prescribed by the Secretary of Veterans Affairs." "Date of receipt" means the date on which a claim is received in the Department of Veterans Affairs. 38 C.F.R. § 3.1(r). The Board notes that the regulation requires filing with VA, not with the Postal Service. The "mailbox rule" is not applicable as to these benefits. Therefore, the application must have actually been received by VA "on or before" December 31, 1991. The veteran presents two basic and alternative arguments: (1) that because of his proximity to the Newark RO, there is no reason why his application should not have been received by VA prior to January 1, 1992, as required by law, and (2) that he should not be penalized for submitting his application late, since VA should have informed him of his potential entitlement to the claimed benefit in sufficient time for him to apply. The evidence reflects that the veteran’s application was received and date-stamped on January 3, 1992. The fact that the Postal Service may have taken longer than usual to deliver it is irrelevant. The regulations clearly indicate that the initial burden was on the veteran to initiate the application process by ensuring the receipt of his application by VA prior to January 1, 1992. Thus, because it was received after December 31, 1991, the veteran’s application was not filed in a timely fashion. Moreover, the veteran’s second argument, that he should not be penalized for VA’s failure to notify him of the availability of the claimed benefit, lacks any statutory or regulatory basis. The regulations also specifically provide that "VA’s failure to furnish any form or information concerning the right to file a claim or to furnish notice of the time limit for the filing of a claim will not extend the periods allowed for these actions." 38 C.F.R. §§ 21.1032(c)(1), 20.4704(b) (1994). Although the Board is sympathetic with the veteran in his desire to receive all VA benefits to which he may be entitled, the law and regulations, in this case, require that his application for the claimed benefit be denied, since it was not filed in a timely fashion. In light of the statutory and regulatory criteria for eligibility for educational benefits under Public Law 101-366, § 207, which requires that applications be filed before January 1, 1992, there is no basis for legal entitlement predicated on a claim filed after that date. In a case such as this one, where the law and not the evidence is dispositive of the issue before the Board, the claim should be denied because of the absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet.App. 426, 430 (1994). Accordingly, the veteran’s appeal is denied. ORDER The appeal is denied. N. R. ROBIN Member, Board of Veterans’ Appeals The Board of Veterans’ Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans’ Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals.