Case: 19-2319 Document: 42 Page: 1 Filed: 03/25/2021
United States Court of Appeals
for the Federal Circuit
______________________
ROBERT VOLLONO,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2019-2319
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-4669, Judge William S. Green-
berg.
______________________
Decided: March 25, 2021
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
TANYA KOENIG, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent-appellee. Also represented
by JEFFREY B. CLARK, CLAUDIA BURKE, ROBERT EDWARD
KIRSCHMAN, JR.; Y. KEN LEE, BRYAN THOMPSON, Office of
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
Case: 19-2319 Document: 42 Page: 2 Filed: 03/25/2021
2 VOLLONO v. MCDONOUGH
Before LOURIE, CHEN, and HUGHES, Circuit Judges.
HUGHES, Circuit Judge.
Robert Vollono appeals a decision by the United States
Court of Appeals for Veterans Claims affirming a decision
by the Board of Veterans’ Appeals which denied the exten-
sion of certain educational benefits to Mr. Vollono. Because
we agree with the Veterans Court that Mr. Vollono is not
entitled to duplicative educational benefits, we affirm.
I
Mr. Vollono served on active duty in the United States
Navy from July 1996 to June 1997 and from May 2001 to
March 2005. Vollono v. Wilkie, No. 17-4669,
2019 WL 962011, at *1 (Vet. App. Feb. 28, 2019) (Decision).
Mr. Vollono’s first stint of active duty was voluntary, while
his second stint was compulsory as a condition of his at-
tendance and graduation from the United States Naval
Academy. Id.
In November 2005, Mr. Vollono applied for and was
awarded chapter 30 Montgomery G.I. Bill (Montgomery)
educational benefits, which he used to pursue post-gradu-
ate education at Georgetown University. Id. at *2; see
38 U.S.C. §§ 3001, 3011. In May 2009, the VA notified
Mr. Vollono that he may be eligible for chapter 33 Post-9/11
G.I. Bill (Post-9/11) educational assistance. Decision,
2019 WL 962011, at *2; see 38 U.S.C. §§ 3301, 3311.
Mr. Vollono applied for and was ultimately found eligible
for Post-9/11 benefits (mistakenly, as it turns out) in a
greater amount than Montgomery benefits, and he elected
to receive Post-9/11 benefits in lieu of Montgomery bene-
fits. Decision, 2019 WL 962011, at *2. Beginning August 1,
2009, Mr. Vollono used these Post-9/11 benefits to complete
post-graduate education at Georgetown and to pursue fur-
ther education at Oxford University. Id.
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VOLLONO v. MCDONOUGH 3
In June 2011, the Buffalo VA regional office (RO) noti-
fied Mr. Vollono that he had been erroneously awarded
$60,507.08 in Post-9/11 benefits, because his service after
September 11, 2001 was obligatory, precluding his eligibil-
ity for such benefits. Id. However, because the benefits
were paid based on an administrative error, the VA did not
recoup the benefits it had paid out. Id.
Mr. Vollono filed a Notice of Disagreement in July
2011, arguing that he was eligible for Post-9/11 benefits.
Id. Following several appeals to the Board and remands to
the RO, in April 2013 the Board affirmed the RO’s decision.
See J.A. 143–56. Mr. Vollono appealed to the Veterans
Court, which ruled in May 2014 that the VA did not err in
determining that Mr. Vollono was not eligible for Post-9/11
benefits but remanded to the Board on other grounds. De-
cision, 2019 WL 962011, at *2. The Veterans Court also in-
structed the Board to make necessary factual findings
concerning Mr. Vollono’s entitlement to Montgomery bene-
fits. Id.
In April 2016, the Board found that Mr. Vollono did not
waive entitlement to Montgomery benefits by election of
Post-9/11 benefits, because he was not eligible to receive
Post-9/11 benefits. Id.; J.A. 185. At Mr. Vollono’s request,
the Board vacated its decision and remanded to the RO to
consider Mr. Vollono’s claim for retrospective Montgomery
benefits based on his education at Georgetown and Oxford.
Decision, 2019 WL 962011, at *2; J.A. 193.
In February 2017, the RO found Mr. Vollono eligible for
$29,107 in Montgomery benefits for the time spent com-
pleting his studies at Georgetown and Oxford, but found
that it could not release payment of these funds that would
be duplicative of his previous receipt of Post-9/11 benefits.
Decision, 2019 WL 962011, at *2; J.A. 195–96. The RO pro-
vided a Supplemental Statement of the Case in March 2017
which reaffirmed that it could not release the funds. Deci-
sion, 2019 WL 962011, at *2.
Case: 19-2319 Document: 42 Page: 4 Filed: 03/25/2021
4 VOLLONO v. MCDONOUGH
Mr. Vollono appealed to the Board, arguing that the
statutes and regulations that denied duplicative payments
applied only to individuals that were eligible for both Mont-
gomery and Post-9/11 benefits, and not to those who were
awarded benefits by administrative error. Id. at *3. The
Board denied Mr. Vollono’s claim, reasoning that the rele-
vant regulation, 38 C.F.R. § 21.7143(a), and its enabling
statute, 38 U.S.C. § 3033, preclude the payment of duplica-
tive educational benefits regardless of current eligibility.
Id.
Mr. Vollono appealed to the Veterans Court which af-
firmed the Board’s decision in a single-judge memoran-
dum. The Veterans Court found that the payment of
benefits was the determinative factor, and that awarding
Montgomery benefits to Mr. Vollono would “lead to an ab-
surd result of placing the appellant in a better position
than that of those worthy veterans who were actually eli-
gible for Post-9/11 GI Bill benefits.” Id. (footnote omitted).
A Veterans Court panel denied reconsideration and en-
tered judgment on the memorandum decision. J.A. 14–16.
Mr. Vollono now appeals the Veterans Court decision.
II
In appeals from the Veterans Court, we have jurisdic-
tion to review “all relevant questions of law, including in-
terpreting constitutional and statutory provisions.”
38 U.S.C. § 7292(d)(1). However, we may not review “a
challenge to a factual determination,” or “a challenge to a
law or regulation as applied to the facts of a particular
case” except to the extent that an appeal from a Veterans
Court decision presents a constitutional issue. 38 U.S.C.
§ 7292(d)(2)(A)–(B). We review the Veterans Court’s legal
determinations de novo. Prenzler v. Derwinski,
928 F.2d 392, 393 (Fed. Cir. 1991).
Case: 19-2319 Document: 42 Page: 5 Filed: 03/25/2021
VOLLONO v. MCDONOUGH 5
III
Mr. Vollono argues that the Veterans Court made two
errors in its interpretation of 38 U.S.C. § 3033(a). First,
Mr. Vollono argues that § 3033(a) bars only duplicative
payments for individuals that are actually eligible for Post-
9/11 educational benefits, not duplicative payments made
in error. Second, Mr. Vollono argues that he has never re-
ceived assistance under two programs concurrently, as re-
quired by the statute.
38 U.S.C. § 3033, entitled “Bar to duplication of educa-
tional assistance benefits” states that “[a]n individual en-
titled to educational assistance under a program
established by this chapter [Montgomery] who is also eligi-
ble for educational assistance under a program under chap-
ter 31, 32, 33 [Post-9/11], or 35 . . . may not receive
assistance under two or more of such programs concur-
rently . . . ” 38 U.S.C. § 3033(a)(1). The regulation imple-
menting this statute, entitled “Nonduplication of
educational assistance” provides that “[p]ayments of edu-
cational assistance shall not be duplicated” and “a veteran
is barred from concurrently receiving educational assis-
tance under 38 U.S.C. chapter 30 [Montgomery] and— . . .
38 U.S.C. chapter 33 (Post-9/11 GI Bill).” 38 C.F.R.
§ 21.7143(a).
The VA’s error in paying Post-9/11 educational benefits
to Mr. Vollono does not preclude the application of
§ 3033(a)’s prohibition against duplicative payments for
the semesters during which he received Post-9/11 benefits.
Section 3033 is not conditioned on current eligibility, but
rather, as the Veterans Court correctly held, “the payment
of benefits [is] the determinative factor.” Decision,
2019 WL 962011, at *3. At the time Mr. Vollono elected to
receive Post-9/11 benefits, the VA considered him eligible
for both programs, and that concurrent eligibility would
have prohibited him from receiving both sets of benefits at
the same time. That the VA later reconsidered his
Case: 19-2319 Document: 42 Page: 6 Filed: 03/25/2021
6 VOLLONO v. MCDONOUGH
eligibility for one of the programs does not alter this con-
clusion. We decline to adopt Mr. Vollono’s interpretation of
§ 3033 that would necessarily put a veteran who mistak-
enly received Post-9/11 educational benefits in a better po-
sition than those who were actually eligible for such
benefits.
With respect to the concurrent nature of benefits, we
conclude that Mr. Vollono is barred from receiving benefits
from two or more educational assistance programs covering
the same semesters of study. Mr. Vollono asserts that the
payment of such benefits does not qualify as “receiv[ing]
assistance under two or more of such programs concur-
rently,” as stated in § 3033(a), since the actual receipt of
benefits occurred at different times. See Appellant’s Br. at
17. Regardless of when the actual benefits are paid out, ed-
ucational benefits covering an overlapping period of study
qualify as concurrent assistance. See Concurrent, Black’s
Law Dictionary (11th ed. 2019) (“1. Operating at the same
time; covering the same matters”). And the regulation im-
plementing § 3033(a) makes clear that concurrent benefits
refers to the period of schooling. See 38 C.F.R. § 21.7143(b)
(“The individual may choose to receive benefits under
38 U.S.C. chapter 33 at any time, but not more than once
during a certified term, quarter, or semester.”).
IV
We have considered Mr. Vollono’s remaining argu-
ments and find them unpersuasive. Because the Veterans
Court properly interpreted the statute, we affirm.
AFFIRMED
COSTS
No costs.