Harvey v. Brown

Harvey v. Brown, 6 Vet. App. 390, decided 1994-04-07.

IVERS, Judge: Jane Harvey, the widow of veteran Harold C. Harvey, appeals an October 30,1992, decision of the Board of Veterans’ Appeals (BVA or Board) denying service connection for the cause of the veteran’s death. Jane Harvey in the Case of Harold C. Haney, BVA 92-25682 (Oct. 30, 1992). The Court has jurisdiction over the ease pursuant to 38 U.S.C. § 7252(a). The Secretary has filed a motion for summary vacation or, in the alternative, for summary affirmance. Since this case presents issues of first impression, however, summary disposition is not appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). Therefore, the Court will deny the Secretary’s motion for summary vacation or, in the alternative, summary affirmance. For the reasons set forth below, the Court affirms the October 1992 decision of the BVA but remands the case for further adjudication consistent with this opinion.

I. Factual Background

The veteran served on active duty in the United States Army from March 23, 1951, to May 7, 1953. R. at 13. On September 23, 1951, he was wounded by mortar fire while serving in Korea. R. at 16. Following separation from service, on June 22, 1953, the veteran filed an application with a VA regional office (RO) seeking compensation for residuals of the mortar fire wounds to the left arm, both legs, and the left side of the neck and face. R. at 88. On September 4, 1953, the RO granted service connection for shell fragment wounds of the left upper forearm and lower forearm involving muscle groups VII and VIII (rated as 30% disabling), the right thigh involving muscle group XIV (30% disabling), the left lower leg and foot involving muscle groups X and XI (30% disabling), for paralysis of the left radial nerve as a residual of shell fragment wounds (20% disabling), and for a scar from a shell fragment wound to the left neck and scalp and left face (10% disabling); the veteran was assigned a combined disability rating of 80%. R. at 102.

On November 5, 1978, the veteran suffered a cerebrovascular accident (CVA). R. at 106, 111. A medical record from the Public Health Service Hospital in San Francisco, California, noted the veteran’s service-connected disabilities and remarked that he had an “occasional intermittent limp without foot drop.” R. at 112. The final diagnosis was malignant hypertension and left hemispheric CVA. R. at 114. On November 15, 1978, the veteran applied for a total disability rating based on individual unemployability due to his service-connected disabilities (TDIU rating) (R. at 106-09), and the RO denied a TDIU rating on April 11, 1979 (R. at 117).

On May 25, 1990, when the veteran fell at home, his wife found him and placed him in bed. R. at 154. The veteran became unresponsive one hour later, and his wife called for an ambulance to take him to a private hospital. R. at 153-54. At the hospital, he was diagnosed with an acute right frontotem-poral parietal subdural hematoma. R. at 162. The veteran died at the hospital on May 27, 1990. R. at 127. The death certificate lists the immediate cause of death as craniocerebral trauma, which was described as an accident, and listed hypertensive cardiovascular disease, CVA by history, and severe arterionephrosclerosis as significant conditions contributing to death but not related to the immediate cause of death. Ibid.

On August 17, 1990, the veteran’s widow, appellant in this case, filed a claim for service connection for the cause of the veteran’s death. See R. at 128. The RO denied service connection on September 21,1990. Ibid. In a December 3,1990, Statement in Support of Claim, appellant wrote:

My husband Harold died May 27,1990[,] due to a fall while going to the bathroom approximately] 11:30 PM.

*393I contend that the [service-connected] left anide and leg of my husband could have been a partial reason for the fall.

Although my husband died of [right] subdural hematoma, I feel the [service-connected] problems could help cause the fall.

R. at 131. On a February 4, 1991, VA Form 1-9 (Appeal to BVA), she wrote:

[The veteran’s left foot] buckled under him time and again during the 37 years between his discharge and his death.... Had he not hit his head when he fell on May 25,1990, it would have been no worse than a repetition of all his previous falls.... He did hit his head though and that led to his death.

R. at 137. At a March 26, 1991, personal hearing before the RO, she testified that her husband would fall six or seven times a year because of his service-connected leg condition. R. at 140. She also testified that she did not witness her husband’s fall, but that she heard him fall in the bathroom and then found him lying on the floor. R. at 145. On May 20, 1991, the hearing officer continued the denial. R. at 172. In an August 6,1991, letter, appellant wrote: “Without the intrinsic injuries of [the veteran’s] foot combined with his weak ankle it is unlikely he would have fallen and hit his head.... [H]e fell because of the permanent injuries of his foot and ankle and sustained a subdural hemato-ma which resulted in his death on May 27th.” R. at 281-82. She also submitted a letter from a co-worker of the veteran’s, who wrote that the veteran “had trouble from time to time keeping his balance and would fall down from time to time_” R. at 283. On October 30, 1992, the Board denied service connection for the cause of the veteran’s death. Harvey, BVA 92-25682, at 7.

II. Analysis

A. Dependency and Indemnity Compensation (DIC)

The surviving spouse of a veteran who has died after December 31, 1956, may file a claim for dependency and indemnity compensation (DIC). 38 U.S.C. §§ 1310, 1311. The veteran’s death will be considered service connected where a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a) (1993). A service-connected disability is the principal cause of death when that disability, “singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto.” 38 C.F.R. § 3.312(b) (1993). A contributory cause of death must be causally connected to the death and must have “contributed substantially or materially” to death, “combined to cause death,” or “aided or lent assistance to the production of death.” 38 C.F.R. § 3.312(c)(1) (1993). Therefore, the issue is whether a service-connected disability was a principal or contributory cause of the veteran’s death. See Stoner v. Brown, 5 Vet.App. 488, 490 (1993).

In this ease, the veteran died of an accidental craniocerebral trauma; significant conditions contributing to death but not related to the immediate cause of death included hypertensive cardiovascular disease, CVA by history, and severe arterionephrosclerosis. R. at 127. Appellant contends that the veteran would not have suffered the trauma to the head but for his service-connected disabilities in his leg and ankle which had caused him to stumble and fall in the past. In particular, she contends that on May 25, 1990, the veteran fell, hit his head, and presumably suffered the trauma that resulted in his death. Appellant is testifying as to the sequence of events that led to the trauma. Just as a layperson may testify as to the physical manifestations of a disease or injury, so appellant here is testifying as to an incident or event that resulted in a physically observable injury, i.e., the craniocerebral trauma. Therefore, appellant is not necessarily opining as to a matter involving medical causation, and her statements render the instant claim well grounded. See Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990) (person submitting claim has “burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded”) (quoting 38 U.S.C. § 5107(a)); but see Grottveit v. Brown, 5 Vet.App. 91, 93 (1993) (Court held that lay assertion of medical causation did not render *394claim well grounded and vacated BVA decision that had found claim to be well grounded). The Court will thus deny the Secretary’s motion to vacate the BVA decision.

Here, however, the Board rejected appellant’s statements that the veteran fell due to his service-connected disabilities. In its decision, the Board stated: “A review of terminal hospitalization reports ... reveals different, and much more probable causes of the fatal fall.” Harvey, BVA 92-25682, at 6. Upon reviewing those reports, the Board assigned more probative value to a private hospital record relating the appellant’s remark that her husband had “slipped on spilled urine while attempting to get to the bathroom_” Harvey, BVA 92-25682, at 6 (referring to R. at 157). The Board also assigned more value to records prepared during the same hospitalization which stated that the veteran’s “baseline neurologic status is alert and interactive with slowed speech (apparently nonaphasie) with ambulation with a cane and walker following a left hemisphere stroke approximately 11 years ago.” R. at 155 (emphasis added). The Board also referred to private medical records from the late 1980’s indicating diagnoses of status-post CVA with right-sided hemipar-esis. See, e.g., R. at 206, 216. (“Hemipare-sis” is defined as “muscular weakness or partial paralysis restricted to one side of the body.” WEBSTER’S MEDICAL DESK DICTIONARY 287 (1986).) As this Court stated in Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990),

[UJnder the “clearly erroneous” rule this Court is not permitted to substitute its judgment for that of the BVA on issues of material fact; if there is a “plausible basis” in the record for the factual determinations of the BVA, even if this Court might not have reached the same factual determinations, we cannot overturn them.

The cause of death involves precisely such a finding of fact and thus cannot be overturned unless it is clearly erroneous. See Turner v. Brown, 6 Vet.App. 256, 258 (1994); Stoner, 5 Vet.App. at 491. In this situation, the Board was faced with a choice between two explanations accounting for the veteran’s fall; its choice rests on a plausible basis.

Appellant argues that the Board was obligated to seek an independent medical opinion as to the cause of the veteran’s death. Br. at 9 (citing Thurber v. Brown, 5 Vet.App. 119, 121 (1993), and Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991)). In Santiago v. Brown, 5 Vet.App. 288, 292 (1993), the Court set forth a useful analytical framework for distinguishing whether the Board’s opinion is an

unsubstantiated medical determination, which this Court has held the Board is unauthorized to render [cite omitted], or whether it is a legal determination, i.e., a finding of fact which the Board, as fact finder, has derived from a review of medical evidence which is sufficiently conclusive as to the underlying medical issues to enable the Board to render the legal determination.

The type of determination involved here is not one which lends itself to a medical opinion because no physician witnessed the actual sequence of events that led to the veteran’s fatal fall. Appellant, thus, overemphasizes the medical nature of the cause of death in this instance. The immediate cause of death is not in dispute: the veteran suffered trauma to the head. What is in dispute is a factual matter: whether the veteran fell because of his service-connected disabilities and thus injured his head.

Appellant also argues that the Board did not provide reasons or bases as to its assessment of the credibility of her statements. Br. at 11-12. The Board, however, expressly assessed the credibility of those statements when it relied on the medical record relating appellant’s account that the veteran slipped on spilled urine on the bathroom floor.

B. DIC Claim Under 38 U.S.C. § 1318(b)

In her brief, appellant also contends that the BVA did not adjudicate service connection under 38 C.F.R. § 3.22 (1993). Under the authorizing legislation, 38 U.S.C. § 1318(b), DIC benefits shall be paid to the surviving spouse or children of

a veteran who dies, not as the result of the veteran’s own willful misconduct, and who was in receipt of or entitled to receive (or but for the receipt of retired or retirement *395pay was entitled to receive) compensation at the time of death for a service-connected disability that either—

(1) was continuously rated totally disabling for a period of 10 or more years immediately preceding death; or

(2) if so rated for a lesser period, was so rated continuously for a period of not less than five years from the date of such veteran’s discharge or other release from active duty.

(Emphasis added.) Under the implementing regulation, 38 C.F.R. § 3.22(a) (1993), such DIC benefits shall be paid when

(1) The veteran’s death was not caused by his or her own willful misconduct; and

(2) The veteran was in receipt of or for any reason (including receipt of military retired or retirement pay or correction of a rating after the veteran’s death based on clear and unmistakable error) was not in receipt of but would have been entitled to receive compensation at the time of death for a service-connected disablement that either

(i) Was continuously rated totally disabling by a schedular or unemployability rating for a period of 10 or more years immediately preceding death; or

(ii) Was continuously rated totally disabling by a schedular or unemployability rating from the date of the veteran’s discharge or release from active duty for a period of not less than 5 years immediately preceding death.

(Emphasis added.) Appellant does not allege that the veteran was rated totally disabled for a period of 10 or more years. Appellant also does not argue that the veteran was deprived of a total disability rating by a prior rating that was predicated on clear and unmistakable error (CUE). See also Damrel v. Brown, 6 Vet.App. 242, 245 (U.S.1994) (38 U.S.C. § 1318 permits award of DIC benefits where deceased veteran’s total disability for 10 or more years may be established on basis of CUE in a prior rating action); Allin v. Brown, 6 Vet.App. 207, 210 (U.S.1994) (reviewing claim that, but for CUE in prior rating action, appellant would have been entitled to DIC benefits under 38 U.S.C. § 1318). Rather, appellant alleges that the veteran should have been rated totally disabled for at least 10 or more years on the basis of individual unemployability.

The statute and the regulation speak of total disability on a schedular or unemploya-bility basis arising from a service-connected disability. Appellant has provided no evidence that the service-connected disability or disabilities should have been rated totally disabling on either a schedular or unemploy-ability basis. Regarding the veteran’s em-ployability, appellant testified at a March 1991 personal hearing that the veteran had worked on light duty status with the United States Postal Service following his stroke but that he had quit when he was assigned to night shifts. R. at 145. In addition, a retired postal supervisor wrote that the veteran had been working under his supervision on light duty status and that the veteran had experienced difficulty in keeping his balance and had fallen from time to time. R. at 283. The retired supervisor did not state that the veteran had been incapable of maintaining his employment and did not offer any reason to contradict appellant’s own account that the veteran had resigned because of the shift assignment. Moreover, appellant undermines her own argument when she recognizes in her brief that the veteran had been unemployed since 1978 following a stroke. Br. at 8. There is no allegation that the veteran’s 1978 stroke was service-connected.

Consequently, there was no well-grounded claim under 38 U.S.C. § 1318 or 38 C.F.R. § 3.22, and the BVA’s failure to deal with this particular method of entitlement to service connection for the cause of the veteran’s death was harmless error. See 38 U.S.C. § 7261(b) (“Court shall take due account of the rule of prejudicial error”); Grivois v. Brown, 6 Vet.App. 136, 139 (U.S.1994); Grottveit, 5 Vet.App. at 92, Murphy, 1 Vet.App. at 81; see also King v. Brown, 5 Vet.App. 19, 21 (1993) (Court reviews well-groundedness as a matter of law); see, e.g., Fisher v. Brown, 4 Vet.App. 57, 60 (1993) (noting that failure to deal with extrasehedu-lar consideration of individual unemployability under 38 C.F.R. § 4.16(b) would be harmless error in absence of well-grounded claim).

*396C. Death Pension

Nevertheless, the case must be remanded to the Board. A claim for DIC will be construed also as a claim for death pension. See 38 U.S.C. § 5101(b)(1); 38 C.F.R. § 3.152(b)(1) (1993); Van Slack v. Brown, 5 Vet.App. 499, 500-01 (1993). Under 38 U.S.C. § 1541(a),

[t]he Secretary shall pay to the surviving spouse of each veteran of a period of war who met the service requirements prescribed in [38 U.S.C. § 1521(j) ], or who at the time of death was receiving (or entitled to receive) compensation or retirement pay for a service-connected disability, pension at the rate prescribed by this section, as increased from time to time under [38 U.S.C. § 5312],

In this case, the veteran served in Korea from March 1951 to May 1953 and thus met the service requirements of 38 U.S.C. § 1521(j). See also 38 U.S.C. § 101(9), (11). The veteran also met the alternative service requirement entitling a veteran’s surviving spouse to a pension under 38 U.S.C. § 1541 where the veteran had been receiving compensation for a service-connected disability at the time of death. The record does not disclose whether the Board ever adjudicated this issue. On remand, the Board must address this issue.

III. Conclusion

Accordingly, upon consideration of the record, the Secretary’s motion for summary vacation or, in the alternative, for summary affirmance, and appellant’s brief, the Court denies the Secretary’s motion for summary vacation or, in the alternative, summary affir-mance, AFFIRMS the October 1992 decision of the BVA, and REMANDS the matter for adjudication consistent with this opinion.

Harvey v. Brown, 6 Vet. App. 416, decided 1994-04-21.

STEINBERG, Judge: The appellant veteran, James R. Harvey, appeals a September 21,1992, decision of the Board of Veterans’ Appeals (BVA or Board) denying him basic eligibility for educational assistance benefits under chapter 30 of title 38, United States Code, the “All Volunteer Force Educational Assistance Program” [hereinafter “GI Bill of 1984” or “New GI Bill” or “NGIB”]. The veteran has filed an informal brief urging the Court to reverse the Board decision. The Secretary has filed a brief requesting summary affirmance. For the reasons set forth below, the Court will affirm the decision of the Board.

I. Background

The veteran enlisted in the Army under the Delayed Entry Program (DEP) on November 8, 1985, by completing and signing a form entitled “Enlistment/Reenlistment Doc-umente,] Armed Forces of the United States”. R. at 69-71. The enlistment form contains alphabetical sections A. through H. Section B., “Agreements”, states in part (with the material underlined that was filled in on the form):

8. I am enlisting/reenlisting in the United States (list branch of service) Army Reserve this date for 8 years and_weeks beginning in pay grade E-l. The additional details of my enlistment/reenlistment are in Section C. and Annex(es) A.

*418a. FOR ENLISTMENT IN A DELAYED ENTRY/ENLISTMENT PROGRAM (DEP): I understand that I will be ordered to active duty as a reservist unless I report to the place shown in item 4 above by (list date (YYMMDD)) 0700 86 JAN 80 for enlistment in the Regular component of the United States (list branch of service) ARMY for not less than 4 years and_ weeks. My enlistment in the DEP is in a nonpay status. I understand my period of time in the DEP is NOT creditable for pay purposes upon entry into a pay status. However, I also understand that this time is counted toward fulfillment of my military service obligation or commitment. I must maintain my current qualifications and keep my recruiter informed of any changes in my physical or dependency status, moral qualifications, and mailing address[.]

b. Remarks: (if none, so state.) NONE

c. The agreements in this section and attached annex(es) are all the promises made to me by the Government. ANYTHING ELSE ANYONE HAS PROMISED ME IS NOT VALID AND WILL NOT BE HONORED.

R. at 69. The record contains no evidence that an annex was attached to the enlistment form. Section D., “Certification and Acceptance”, states in part:

I CERTIFY THAT I HAVE CAREFULLY READ THIS DOCUMENT. ANY QUESTIONS I HAD WERE EXPLAINED TO MY SATISFACTION. I FULLY UNDERSTAND THAT ONLY THOSE AGREEMENTS IN SECTION B OF THIS DOCUMENT OR RECORDED ON THE ATTACHED ANNEX(ES) WILL BE HONORED. ANY OTHER PROMISES OR GUARANTEES MADE TO ME BY ANYONE ARE WRITTEN BELOW: (if none, X “NONE” and initial)

R. at 70. The form indicates that the veteran checked the box labeled “NONE” and initialed his checkmark. Ibid.

Sections F., “Discharge From Delayed Entry/Enlistment Program”; G., “Approval and Acceptance by Service Representative”; and H., “Confirmation of Enlistment or Reenlistment”, of the veteran’s Enlistment/Reenlistment Document were completed and signed by the veteran on January 30,1986. Section F. indicates that the veteran was discharged from the DEP and enlisted in the Regular Component of the Army on January 30,1986. R. at 71. Section F. states (with the material underlined filled in): “No changes have been made to my enlistment options OR if changes were made they are recorded on Annex(es) B & C which replace(s) Annex(es) A. Ibid. The record contains no indication of any annex to this portion of the veteran’s Enlistment/Reenlistment Document.

On February 3, 1986, four days after his entrance into active duty in the Army, the veteran signed and dated a DD Form 2366, “Veteran’s Educational Assistance Act of 1984 ([New] GI Bill)”. The form contained a “Statement of Understanding” which explained that the veteran was “eligible for the GI Bill of 1984 and [would be] automatically enrolled.” R. at 60. The veteran’s signature appears beneath this statement. The form also contains a “Statement of Enrollment”, which notes:

a. I understand that if I remain enrolled in the GI Bill of 1984 that $100 per month will be deducted from my basic pay for EACH of the first full 12 months of active duty and WILL NOT BE REFUNDED

b. I must complete three years of service before I am entitled to $300 per month for 36 months ($250 per month for 36 months, if I have a two year obligation)

c. I must complete two years of active duty service and join the Selected Reserve for a minimum four year service agreement before I am entitled to $300 per month for 36 months.

Ibid. The veteran’s signature appears beneath this statement also. The form further contains a section entitled “Service Unique Education Assistance Options”, which noted: “If I remain enrolled in the GI Bill of 1984,1 may be eligible for additional educational assistance based on my military specialty and/or years of service as shown below”. Ibid. An illegible hand-written sentence appears underneath this section. Ibid. The *419illegible sentence, clarified in a handwritten attachment to DD Form 2366, states: “I understand that I may not become entitled to the new GI Bill and/or the new ACF [Army College Fund] for the same time period of service that I accrue from repayment of eligibility.” R. at 59.

In June 1992 testimony to the BVA, the veteran later explained the circumstances surrounding his entry into service and ensuing events, as follows:

When I enlisted in the Army ... I was in college for a year, and so I had loans accrued from that period. And I wanted the GI bill. So [when] I enlisted, I made sure I had both the loan forgiveness time track and the part of the GI bill all in there- I wrote letters to the bank ... so I wouldn’t have to make payments.... [A]fter I was in for several months, the bank sent me a note saying these loans aren’t getting paid. So I had to start [making] some phone calls....

R. at 48.

On January 15, 1987, after he had served almost a year, the Army wrote to the veteran as follows:

The New GI Bill became effective 1 July 1985. One of the provisions of the new law precludes accruing eligibility for both Loan Repayment and New GI Bill for the same period of service.... Some soldiers who entered active duty between 1 July 1985— 31 March 1986 were erroneously offered both the Loan Repayment Program and the New GI Bill. You have been identified as one of those soldiers, and you now must choose an option in accordance with the law.

R. at 53. The letter went on to note that, if the veteran had been promised both the New GI Bill and the Loan Repayment Program, he should have DD Form 2366, “Veteran’s Educational Assistance Act of 1984”, and DD Form 2057-2, “Loan Forgiveness Statement of Understanding”. Both of these forms are of record. R. at 60, 55. The letter detailed the following four options for a four-year enlistee such as the veteran: (1) receive one year’s Loan Repayment and three years’ New GI Bill; (2) receive two years’ Loan Repayment and two years’ New GI Bill (with basic benefits of $250 per month for 36 months); (3) receive three years’ Loan Repayment; or (4) receive three years’ New GI Bill. R. at 54.

The veteran later testified, referring to the available options, “I didn’t really want [them], I wanted what I enlisted for. And they said ... [y]ou either take this or you’re going to have to request a discharge.” R. at 48. In April 1987, the veteran submitted a “Request [for] Separation under Chapter 7, Section 4, Paragraph 7-16 A(l-3) and Paragraph 7-16 B(l) of AR [Army Regulation] 635-200. Defective Enlistment”. R. at 72. The request, typed on Department of the Army letterhead, stated:

[I] request that I be separated from the service under [the] chapter stated above I was told by recruiter personnel [that] I could have the New GI Bill and Loan Forgiveness at full benefits and I signed contract options (DD Form 2366 and DD Form 2057-2) to that effect_ If I took the best option offered (2 year New GI Bill) I will lose $1800 ... If I chose the best option offered to me concerning the Loan Forgiveness contract (2 year Loan Repayment) I found ... that I will lose a minimum of $700.... The Army no longer offers me the answer to financing my education. If I were to accept the enclosed agreement I would not meet my goal upon which I enlisted. Therefore, I wish to separate from the service, so I can continue p[u]rsuing my educational plans.

R. at 72-73.

In October 1987, the Army returned the veteran’s request without further processing. The Army explained that (1) the veteran’s file indicated that he fully understood that he might not have been entitled to the New GI Bill and Loan Repayment benefits for the same period of service (this statement apparently referred to the handwritten insert on the veteran’s DD Form 2366, which, as noted above, stated that the veteran understood that he “may not become entitled to the new GI Bill and/or the new ACF for the same time period of service that I accrue from repayment of eligibility.”) and (2) he had not completed the form which informed him that *420he was not eligible for both the New GI Bill and Loan Repayment Forgiveness by choosing one of the options. R. at 77. A December 1987 “Memorandum For Record”, prepared by an Army attorney on the base, clarified the veteran’s position on these issues. The memorandum stated:

[T]he handwritten entry on DD Form 2366 was made at the direction of [a sergeant] at Fort Leonardwood [sic], Missouri.... [The veteran] asked [the sergeant] what the terminology meant since he was confused as to its purpose.... [The sergeant] responded that, ‘It was needed for the system in order to process it.’ [The veteran] still failed to understand the relevancy or significance of the entry he was directed to make.... [but] he obeyed the direction and made the written entry without understanding its meaning.... [H]e was told in words that it was just a formality and not a conditional provision.

R. at 78. The memorandum explained the veteran’s position as follows:

[The veteran] did not make the election since neither option offered was the same as his enlistment contract. And, if [he] did elect an option other than the contracted provision, he would in effect be waiving the benefits of the original agreement and would have no basis to claim breach of the original contract.

Ibid.

The veteran’s request for separation was apparently processed soon thereafter. His DD Form 214, “Certificate of Release or Discharge From Active Duty”, shows his separation date as March 17, 1988. R. at 12. The reason for separation is noted as “Unfulfilled Enlistment Commitment”, and the separation authority is noted as “AR 636-200, Para _”, with the paragraph number left blank.

In May 1991, the veteran applied to a Department of Veterans Affairs (formerly Veterans’ Administration) (VA) regional office (RO) for education benefits under the New GI Bill. R. at 13-15. In June 1991, the VARO informed him that his claim for educational assistance was being denied because “the evidence [does] not establish that [you] meet the qualifications required for this benefit.” R. at 18. In a June 1991 letter to the RO, the veteran disputed the denial. R. at 19. An undated letter from the RO to the veteran further explained the denial as follows:

To be eligible for benefits under the [New] G.I. Bill, a veteran must ... complete the initial period of obligated service unless discharged for a service[-]connected disability, for a disability which existed prior to service, a reduction in force, for hardship reasons, or for the convenience of the [Government after serving at least 20 months of a two[-]year obligation or 30 months of a three[-]year obligation.

R. at 23.

In a July 1991 letter to the RO, the veteran requested an explanation as to why his discharge could not be viewed as a hardship case. R. at 27. In an undated reply letter, the RO explained, “[y]our character of discharge and separation reason are determined by the Department of Defense [DOD]”, and further suggested that the veteran contact DOD if he felt his discharge certificate was incorrect. In his December 1991 Form 1-9 Appeal to the BVA, the veteran argued that he should be able to receive education benefits because the Army broke its contract with him by not fulfilling its original promise. R. at 38-39.

At a personal hearing before the BVA in June 1992, the veteran testified under oath that when he requested a discharge “no one said, well, look, you know, you’re not going to get your benefits or [anything else. You know, you better stay in or you won’t get your benefits.... So I went ahead and got a discharge.” R. at 49. He also testified that immediately after his discharge he had called the VA and was told that he would be able to receive education benefits under the New GI Bill and that “my name was [on the] main frame, and everything was okay.” Ibid. He reiterated that he should be entitled to “use the New GI bill”. He stated: “[M]y basic argument is that when I enlisted I went through these contracts and everything.... [A]nd now because the Army [couldn’t] fulfill their end of the contract [to provide the New GI Bill and Loan Repayment Forgive*421ness]_ I don’t have any ... official benefits or anything”. R. at 49.

In a September 21, 1992, decision, the BVA denied the veteran’s entitlement to basic eligibility for the New GI Bill, stating:

In this case, the veteran’s DD Form 214 reflects that he was discharged before completing three years of service, so he does not satisfy the eligibility criteria in 38 U.S.C.A § 3011(a)(l)(A)(i) (West 1991). The Board has also considered whether he might be eligible under 38 U.S.C.A. § 3011 (a)(1)(A)(ii) (West 1991). The veteran’s DD Form 214 reflects that the reason for his separation was “unfulfilled enlistment commitment,” and the separation authority cited was AR 635-200. The claims folder reflects that the veteran was given the opportunity to separate from service when it was discovered that the Army recruiter had misinformed him regarding loan forgiveness and benefits under the new GI bill, and that the veteran relied on those misrepresentations when he decided to enlist. The veteran’s initial obligated term of service was four years. He testified that he chose to be separated from service prior to expiration of that term of service when he learned that he had been mislead [sic].... The claims folder also reflects [DOD] data that indicate that the veteran was separated for the convenience of the Government; however, it was not involuntary for the convenience of the [G]overnment due to reduction in force- [T]he separation for the convenience of the Government occurred prior to completion of 30 months of the veteran’s four-year obligated term. Therefore, neither the veteran’s length of service nor his reason for separation meet the eligibility criteria in 38 U.S.C.A. § 3011(a)(1)(A) (West 1991); 38 C.F.R. § 21.7042(a) (1991).

R. at 6-7. A timely appeal to this Court followed.

II. Analysis

The veteran asks the Court to reverse the BVA decision and declare him eligible for NGIB benefits. He claims that he was not informed, prior to discharge, that he would be ineligible for education benefits. He also contends that he was informed by VA immediately after discharge that he was eligible for NGIB benefits. He expresses disagreement with the characterization of his discharge, arguing that if his discharge were viewed as a “hardship” discharge he would be eligible for these benefits. If the Court decides against him, he requests a refund of the $1,200 ($100 per month) which was deducted from his pay during his first year of active duty.

A. Entitlement to NGIB Educational Assistance

The statutory provision containing eligibility criteria for NGIB educational assistance benefits under chapter 30 provides in pertinent part:

(a) ... [E]ach individual—

(1) who—

(A) after June 30, 1985, first becomes a member of the Armed Forces or first enters on active duty as a member of the Armed Forces and—

(i) who (I) serves, as the individuals’s [sic] initial obligated period of active duty, at least three years of continuous active duty in the Armed Forces ...; or

(ii) who serves in the Armed Forces and is discharged or released from active duty ... (I) ... for hardship ...; (II) for the convenience of the Government, ... in the case of an individual who completed not less than 30 months of continuous active duty if the initial obligated period of active duty of the individual was at least three years ...

is entitled to basic educational assistance under this chapter.

38 U.S.C. § 3011(a)(1)(A). See also 38 C.F.R. § 21.7042 (1993).

Section 2171, “General education loan repayment program”, of title 10 of the United States Code, provides:

(a)(1) Subject to the provisions of this section, the Secretary of Defense may repay—

(A) any loan made, insured, or guaranteed under part B of title IV of the *422Higher Education Act of 1965 (20 U.S.C. 1071 et seq.); or

(B) or any loan made under part E of such title (20 U.S.C. 1087aa et seq.)

Repayment of any such loan shall be made on the basis of each complete year of service performed by the borrower.

(2) The Secretary may repay loans described in paragraph (1) in the case of any person for—

(A) service performed—

(i) as an enlisted member of the Selected Reserve of the Ready Reserve of an armed force; and

(ii) in a reserve component and military specialty specified by the Secretary of Defense; or

(B) service performed on active duty as an enlisted member in a military specialty specified by the Secretary.

10 U.S.C. § 2171(a)(1), (2).

“Statutory interpretation begins with the language of the statute.” Texas Instruments v. U.S. Int’l Trade Comm’n, 988 F.2d 1165, 1180 (Fed.Cir.1993); see M.A. Mortenson Co. v. United States, 996 F.2d 1177, 1181 (Fed.Cir.1993). And it may very well end with the statutory language when it is clear and unambiguous on its face. See Gardner v. Derwinski, 1 Vet.App. 584, 587 (1991), aff'd, 5 F.3d 1456 (Fed.Cir.1993). This Court held in Kelley v. Derwinski, 3 Vet.App. 171, 172 (1992), that section 3011(a) is “clear on its face and capable of being understood” and “should not have additional meaning supplied to it by further interpretation.” The basic statutory requisites for entitlement to NGIB benefits are “at least three years of continuous active duty” or “not less than 30 months of continuous active duty” in the ease of a discharge for the convenience of the Government. The veteran enlisted in the Army for an initial obligated period of four years and was discharged after having served 25 months and eighteen days; thus, he does not satisfy the length-of-service minimum for either of the eligibility requisites for NGIB benefits. He asks the Court to declare him eligible for these benefits regardless of his statutory ineligibility, but “[n]either the VA nor the Court can extend [NGIB] benefits out of sympathy for a particular veteran.” Kelley, supra.

Nonetheless, the Court will address the veteran’s contention that prior to discharge he was not informed of his resulting ineligibility for education benefits and that immediately after discharge he was informed that he was eligible for NGIB benefits. The Court interprets the veteran’s contentions as to lack of advice prior to discharge and misinformation regarding eligibility after discharge as an equitable estoppel claim — that is, that the alleged misinformation and lack of advice on the part of the U.S. Government estops it from denying him entitlement to benefits.

Section 7722(d), “Outreach Services”, of title 38 of the United States Code, provides in part:

(d) The Secretary [of Veterans Affairs] shall provide, to the maximum extent possible, aid and assistance (including personal interviews) to members of the Armed Forces, veterans, and eligible dependents ... in the preparation and presentation of claims under laws administered by the Department.

In Smith (Edward F.) v. Derwinski, 2 Vet.App. 429, 432-33 (1992), this Court concluded that “the plain language of [section 7722(d) ] manifests an explicit congressional intent” to impose an obligation on VA to provide veterans with individualized assistance “to the maximum extent possible” and that the veteran in that case should have been provided with “information he needed in order to decide whether he wished to claim retroactive benefits.” Id. at 431-32; see also Littke v. Derwinski, 1 Vet.App. 90, 92 (1990) (section 7722 [formerly 241] is one of a number of statutes comprising VA obligation to assist the veteran); Canary v. Derwinski, 3 Vet.App. 109 (1992) (Steinberg, J., concurring) (pursuant to section 7722(d) Secretary was statutorily obliged to give veterans “the information [they] needed” in order to make timely and effective application for upward adjustment of VA pension benefit based on unreimbursed medical expenses); cf. Mays v. Brown, 5 Vet.App. 302, 306 (1993) (where statute provides that Secretary notify veterans of application time limits for VA outpa*423tient dental treatment and Secretary does not provide notification, application time limits do not begin to run); Hamilton v. Brown, 4 Vet.App. 528, 544-45 (1998) (en banc) (VA’s failure to send, as required by statute, formal application form after informal claim received suspends one-year time limit for filing formal application); Servello v. Derwinski, 3 Vet.App. 196, 200 (1992) (same); Quarles v. Derwinski, 3 Vet.App. 129, 137 (1992) (same). The Smith opinion specifically cautioned that section 7722(d) “is not unlimited in scope ... and requires of the VA only those actions which are reasonable under the circumstances involved”. Smith, 2 Vet.App. at 432-33. Even under the most generous reading of the statute and our caselaw, VA had no obligation prior to the veteran’s discharge to assist him to prepare a claim that he had not indicated to VA that he wanted to make. At most, it is arguable that the veteran should have received from VA “aid and assistance” in the form of accurate information about education benefits eligibility after he, according to his testimony, contacted VA immediately after discharge about NGIB benefits.

In addition, paragraph 2-3a, “Presep-aration Services Program (PSSP)”, of Army Regulation 635-10 provides in part:

[A] mandatory briefing for honorably transitioning soldiers [will] be conducted not later than 90 days before transition date.... The briefing will contain the following information—

(8) VA benefits

Accordingly, it is also arguable that the Army had an obligation to inform the veteran before discharge about his basic eligibility or ineligibility for NGIB education benefits.

Where this Court has previously considered estoppel claims, it has either decided the case on other grounds or rejected estop-pel outright. In Smith, 2 Vet.App. at 434, the Court held that even though VA had failed to satisfy the statutory obligation imposed by section 7722(d), the appropriate remedy in that ease was to apply the doctrine of equitable tolling, as iterated in Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), and not equitable estoppel. See also Rosler v. Derwinski 1 Vet.App. 241, 246 (1991) (equitable estoppel claim based on misleading advice in BVA letter decided on other grounds); Elsevier v. Derwinski 1 Vet.App. 150, 154-55 (1991) (Secretary not estopped from asserting that appeal untimely where BVA failed to timely inform appellant that his Notice of Appeal should have been filed not with BVA but with the Court); Fugere v. Derwinski 1 Vet.App. 103, 106 (1990) (Secretary’s invocation of equitable estoppel doctrine rejected and case decided on other grounds). In Lozano v. Derwinski, 1 Vet.App. 184, 185 (1991), this Court considered and denied an estoppel claim involving a veteran who had received mistaken notification that his hearing loss was service connected. The Court stated: “A clerical error cannot be relied upon to invoke an estoppel against the United States for money payments.” The Lozano opinion relied on OPM v. Richmond, 496 U.S. 414, 416-17, 110 S.Ct. 2465, 2467, 110 L.Ed.2d 387 (1990), where the Supreme Court, in a case involving a former federal employee receiving a federal disability pension who had relied on erroneous information provided by the Office of Personnel Management and thereby became ineligible for a statutorily prescribed disability annuity, held that the annuity could not be granted to the pensioner even though he had relied on the erroneous information. The Supreme Court noted that under the Appropriations Clause of the Constitution, Art. I, sec. 9, cl. 7, “payments of money from the Federal Treasury are limited to those authorized by a statute” and that in the pensioner’s case “the relevant statute by its terms excludes respondent’s claim” for disability annuity. Richmond, 496 U.S. at 424, 110 S.Ct. at 2471. The Smith panel distinguished Richmond from the Supreme Court’s Irwin opinion, where the doctrine of equitable tolling was applied to a claimant’s untimely-filed equal employment opportunity suit, by noting that whereas Irwin had involved a question of “whether the government’s actions resulted in the failure to file a timely request for ... benefits”, Richmond had involved a “question of whether the government’s actions caused the appellant to fail to satisfy the underlying statu*424tory eligibility requirements for the benefits sought”. Smith, 2 Vet.App. at 433.

The facts of the instant case are similar to those in Richmond. Here the veteran claims entitlement to NGIB benefits on the basis of his assertion that information was withheld and/or that erroneous information was provided regarding education benefits. Just as the Richmond Court could not provide the pensioner there with the relief he requested, entitlement to a statutorily prescribed disability annuity for which he was ineligible, so here the Court cannot grant the veteran entitlement to statutorily prescribed NGIB benefits because he does not meet the statutory eligibility criteria established by Congress in 38 U.S.C. § 3011(a). See Richmond, 496 U.S. at 424, 110 S.Ct. at 2471; Lozano, supra; see also Petersen v. OPM, 16 F.3d 422 (Fed.Cir.1993) (unpublished decision) (death beneficiary designation form mistakenly held at VA Medical Center and not “received [at OPM] before [the employee’s] death”, as required by 6 U.S.C. § 8342(c), prevented payment of death benefits to designee out of U.S. Treasury).

Thus, assuming, but not deciding, that AR 636-10, para. 2-3a(8) and section 7722(d) imposed some obligations upon the Army and VA to provide the veteran with accurate “information” about VA NGIB benefits eligibility before and after his discharge, and even accepting the veteran’s testimony that after discharge he was informed by VA via telephone that he was eligible for NGIB benefits, the Court holds that the remedy for breach of such an alleged obligation cannot involve payment of benefits where the statutory eligibility requirements for those benefits are not met.

One further theory of relief that should be addressed is the Army’s breach of the enlistment contract. Although it seems fairly well settled that common-law contract principles do not apply to some aspects of an enlistment agreement, see United States v. Larionoff, 431 U.S. 864, 869, 97 S.Ct. 2150, 2154, 53 L.Ed.2d 48 (1977) (where question is breach of enlistment extension bonus agreement, courts should refer to statutes and regulations rather than ordinary contract principles); Bell v. United States, 366 U.S. 393, 401, 81 S.Ct. 1230, 1235, 6 L.Ed.2d 365 (1961) (“Common law rules governing private contracts have no place in the area of military pay”), there are cases in which courts have examined enlistment agreements under contract principles. See Peavy v. Warner, 493 F.2d 748, 750 (5th Cir.1974) (claim that enlistment extension contract was invalid or was breached decided under traditional notions of contract law); Johnson v. Chafee, 469 F.2d 1216, 1220 (9th Cir.1972) (impliedly same); Shelton v. Brunson, 465 F.2d 144, 147 (5th Cir.1972) (same); Helton v. United States, 532 F.Supp. 813, 824 (S.D.Ga.1982) (same). In any event, the remedy for breach in this case cannot be the relief that the veteran seeks, a direction by the Court that the unauthorized enlistment contract be honored through specific performance, because the veteran is not eligible to receive such benefits under statutory law. As Richmond succinctly noted: “[I]t would be most anomalous for a judicial order to require a Government official ... to make an extrastatutory payment of federal funds. It is a federal crime, punishable by fine and imprisonment, for any Government officer or employee to knowingly spend money in excess of that appropriated by Congress.” Richmond, 496 U.S. at 430, 110 S.Ct. at 2474.

B. Discharge Characterization

The veteran also contends that his discharge should be classified as a “hardship” discharge, a characterization which he believes would entitle him to educational assistance under 38 U.S.C. § 3011(a)(l)(A)(ii)(I). However, any disagreement the veteran may have regarding the assigned discharge classification must be raised with the Army Board for the Correction of Military Records, not VA. See 10 U.S.C. § 1552(a)(1) (Secretary of a military department may correct any of his department’s military records “to correct an error or remove an injustice”); Lauginiger v. Brown, 4 Vet.App. 214, 216 (1993) (veteran must look to the Air Force, not VA, in dispute over whether service records of radiation exposure are complete).

C. Equitable Relief

The veteran further requests the Court, in the event it affirms the BVA deci*425sion and denies eligibility for NGIB benefits, to direct the return of his $1,200 “investment”, the amount deducted from his Army pay due to his enrollment in the NGIB during his first year of active duty. Although the veteran asserts that he is entitled to the return of the $1,200 deducted during his first year of service, section 3011(b) provides that the pay deducted “shall revert to the [U.S] Treasury and shall not, for purposes of any Federal law, be considered to have been received by or to be within the control of [the] individual.” Thus, the veteran cannot characterize his claim in this regard as the return of $1,200 because under the statute he cannot be considered to have received such pay. In addition, the Court notes that DD Form 2366, “Veteran’s Educational Assistance Act of 1984 ([New] GI Bill)”, which he completed and signed, states that the $1,200 deduction “will not be refunded”.

However, with further regard to the veteran’s claim of entitlement to the $1,200, the Court notes that Congress, in 38 U.S.C. § 503(a), provided the Secretary of Veterans Affairs with the authority to act upon requests for equitable relief. Section 503(a) provides:

If the Secretary determines that benefits administered by the Department have not been provided by reason of administrative error on the part of the Federal Government or any of its employees, the Secretary may provide such relief on account of such error as the Secretary determines equitable, including the payment of moneys to any person whom the Secretary determines is equitable entitled to such moneys.

In Schleis v. Principi, 3 Vet.App. 415, 418 (1992), the Court, referencing section 503(a), held: “Only the Secretary is permitted by statute to take equitable considerations into account in reviewing claims for administrative error.” Likewise, in Suttman v. Brown, 5 Vet.App. 127, 138 (1993), the Court noted that the authority to award equitable relief under section 503(a) is committed “‘to the sole discretion of the Secretary’ and that the BVA and, consequently, this Court are without jurisdiction to review the Secretary’s exercise of that discretion.” See Kelley, 3 Vet.App. at 173; Darrow v. Derwinski, 2 Vet.App. 303, 306 (1992). Thus, this Court may not review the merits of appellant’s contention of entitlement to equitable relief and any such claim must be presented directly to the Secretary. See 38 C.F.R. § 2.7 (1993).

III. Conclusion

Upon consideration of the record and the pleadings of the parties, the Court holds that the appellant has not demonstrated that the BVA committed error that would warrant remand or reversal under 38 U.S.C. §§ 7252 and 7261. The Court thus affirms the September 21, 1992, BVA decision.

AFFIRMED.