Citation Nr: 1414019 Decision Date: 04/01/14 Archive Date: 04/11/14 DOCKET NO. 11-00 207A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Processing Office in Buffalo, New York THE ISSUE Basic eligibility for Post-9/11 GI Bill education benefits under Chapter 33. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on honorable active duty in the United States Army from June 1982 to April 1986. He thereafter served on honorable active duty in the Pennsylvania Army National Guard from March 1989 to March 1990. He lastly served a period of uncharacterized active duty for training (ACDUTRA) in the Pennsylvania Army National Guard from November 2005 to February 2006 for a period of 2 months and 27 days. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2010 decision by the Buffalo, New York, Regional Processing Office (RO) of the Department of Veterans Affairs (VA), which determined that the Veteran did not meet the requirements for basic eligibility for Post-9/11 GI Bill education benefits under Chapter 33, on the basis of having no qualifying active duty. Pursuant to the Veteran's request, he was scheduled for a hearing at the Philadelphia, Pennsylvania, VA Regional Office before a traveling Veterans Law Judge, which was to have been conducted in October 2012. However, in correspondence dated in October 2012 that was received by VA prior to the scheduled hearing date, the Veteran expressly withdrew his request and cancelled the hearing. For the reasons discussed below, this appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant and his representative if further action is required on their part. REMAND The RO denied basic eligibility for Post-9/11 GI Bill education benefits under Chapter 33 because it determined that the Veteran had no qualifying active duty under the governing regulation 38 C.F.R. § 21.9520(a). Specifically, upon review of the Veteran's service records, the RO concluded that his active military service for the period after September 10, 2001, was for a period of ACDUTRA under Title 32 from November 18, 2005 to February 14, 2005, which amounted to only 89 days, which is less than the 90-day minimum requirement to be eligible for the education benefit sought. The RO also determined that eligibility could not be alternatively established under the provision of 38 C.F.R. § 21.9520(b), which provides eligibility on the basis of a claimant serving on active duty for a minimum of 30 continuous days and, after completion of such service, is discharged under other than dishonorable conditions due to a service-connected disability. The DD-214 Form showing the Veteran's period of ACDUTRA from November 18, 2005 to February 14, 2005, listed it as "uncharacterized" service. It is evident, however, that notwithstanding its uncharacterized status, this service was not a bar to the Veteran being awarded service connection for coccidiomyocosis (currently rated 50 percent disabling) and inflammatory (rheumatoid) arthritis of the left hand (currently rated 10 percent disabling), whose onset was determined to have been during this period of ACDUTRA. The DD-214 Form in question, however, specifically stated that the narrative reason for the Veteran's separation for this period of ACDUTRA was "completion of required active service" and not a medical separation on the basis of his service-connected disabilities. Records from the Pennsylvania Army National Guard show that the Veteran was officially separated from National Guard service in October 2009. In February 2011, the Veteran submitted a DD-149 Form, applying for an official correction to his military record. He requested that his DD-214 Form for his ACDUTRA service from November 18, 2005 to February 14, 2005 reflect that he was honorably separated for medical reasons so as to establish his eligibility for Post-9/11 GI Bill education benefits under Chapter 33. However, no subsequent response to the Veteran's application is shown in his claims file or his records on the Virtual VA and VBMS electronic databases. During the course of the appeal, an August 2012 determination of the Physical Disability Board of Review of the United States Army recommended that the Veteran's separation from the Pennsylvania Army National Guard be recharacterized to reflect permanent disability retirement on the basis of his coccidiomyocosis and rheumatoid arthritis, whose onset was during his period of ACDUTRA from November 18, 2005 to February 14, 2005. An October 2012 letter from the Department of The Army shows that it acknowledged and accepted the Physical Disability Board's recommendation. However, the letter did not make any reference to, or modification of the Veteran's DD-214 Form reflecting his uncharacterized ACDUTRA service from November 18, 2005 to February 14, 2005. The ultimate decision of the military service department regarding the Veteran's February 2011 application for a revision of his military record is outcome determinative of the pending claim for basic eligibility for Post-9/11 GI Bill education benefits under Chapter 33. If the service department modifies the Veteran's DD-214 for his period of ACDUTRA from November 18, 2005 to February 14, 2005 to reflect that he was honorably separated for medical reasons (i.e., his service-connected coccidiomycosis and inflammatory arthritis), he will meet the provisions of 38 C.F.R. § 21.9520(b) (2013), and thus prevail in his claim. The August 2012 recommendation of the Army Physical Disability Board indicates that there is a reasonable likelihood that the Veteran's requested modifications to his service record would be officially implemented. However, no subsequent response to the Veteran's application is shown in his claims file or his records on the Virtual VA and VBMS electronic databases. As it appears that this matter is either pending, or the determination of the service department is not associated with the record, a REMAND to the RO/AMC is warranted so that the appropriate development may be undertaken to obtain a copy of this determination for inclusion in the Veteran's claims file. Accordingly, the case is REMANDED to the RO/AMC for the following action: 1. The RO/AMC should undertake the appropriate actions to obtain a copy of the service department's decision in response to the Veteran's request (see DD-149 Form, dated in February 2011) that his period of uncharacterized ACDUTRA from November 18, 2005 to February 14, 2006 reflect that he was honorably separated for medical reasons relating to his service-connected disabilities. An updated DD-214, if usch has been generated, should be obtained and included with the claims folder. If the RO cannot obtain records identified as relevant by the Veteran, a notation to that effect should be included in the file. The Veteran is to be notified of unsuccessful efforts in this regard. 2. Following completion of the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claim for basic eligibility for Post-9/11 GI Bill education benefits under Chapter 33 should be adjudicated on the merits following review of all relevant evidence associated with the claims file. If the benefit sought on appeal remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).