Citation Nr: 1122480 Decision Date: 06/09/11 Archive Date: 06/20/11 DOCKET NO. 10-22 594A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to educational assistance benefits under the Post 9/11 GI Bill, Chapter 33, Title 38, United States Code. ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from October 1996 to December 2008. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that the Veteran is afforded every possible consideration. The Veteran claims that he should be awarded Chapter 33 educational assistance benefits. His claim was denied on the basis that his narrative reason for separation, Alcohol Rehabilitative Failure, prohibited entitlement. Pursuant to 38 C.F.R. § 21.9520, it is provided that basic eligibility is established for those Veterans who have active duty service after September 10, 2001, if he or she: (a) Serves a minimum of 90 aggregate days excluding entry level and skill training (to determine when entry level and skill training may be included in the total creditable length of service, see Sec. 21.9640(a)) and, after completion of such service,-- (1) Continues on active duty; (2) Is discharged from service with an honorable discharge; (3) Is released from service characterized as honorable and placed on the retired list, temporary disability retired list, or transferred to the Fleet Reserve or the Fleet Marine Corps Reserve; (4) Is released from service characterized as honorable for further service in a reserve component; or (5) Is discharged or released from service for- (i) A medical condition that preexisted such service and is not determined to be service-connected; (ii) Hardship, as determined by the Secretary of the military department concerned; or (iii) A physical or mental condition that interfered with the individual's performance of duty but was not characterized as a disability and did not result from the individual's own misconduct; (b) Serves 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; or (c) (1) After meeting the minimum service requirements in paragraph (a) or (b) of this section (i) An individual makes an irrevocable election to receive benefits under 38 U.S.C. chapter 33 by relinquishing eligibility under either 38 U.S.C. chapter 30, or 10 U.S.C. chapter 106a, 1606, or 1607; (ii) A member of the Armed Forces who is eligible for educational assistance under 38 U.S.C. chapter 30 and who is making contributions towards such educational assistance under 38 U.S.C. 3011(b) or 3012(c) makes an irrevocable election to receive benefits under 38 U.S.C. Chapter 33; or (iii) A member of the Armed Forces who made an election not to receive educational assistance under 38 U.S.C. chapter 30 in accordance with 38 U.S.C. 3011(c)(1) or 3012(d)(1) makes an irrevocable election to receive benefits under 38 U.S.C. chapter 33. (2) An individual may make an irrevocable election to receive benefits under this chapter by properly completing VA Form 22-1990, submitting a transfer-of-entitlement designation under this chapter to the Department of Defense, or submitting a written statement that includes the following- (i) Identification information (including name, social security number, and address); (ii) If applicable, an election to receive benefits under chapter 33 in lieu of benefits under one of the applicable chapters listed in paragraph (c)(1)(i) of this section (e.g., ``I elect to receive benefits under the Post-9/11-GI Bill in lieu of benefits under the Montgomery GI Bill--Active Duty (chapter 30) program.''); (iii) The date the individual wants the election to be effective (e.g., ``I want this election to take effect on August 1, 2009.''). An election request for an effective date prior to August 1, 2009, will automatically be effective August 1, 2009; and (iv) An acknowledgement that the election is irrevocable (e.g., ``I understand that my election is irrevocable and may not be changed.''). The Veteran claims that his discharge comes within the parameters of 38 C.F.R. § 21.9520(a)(1)(iii). He states that he has initiated a claim of service connection for post-traumatic stress disorder (PTSD) which is a "mental condition that interfered with the individual's performance of duty but was not characterized as a disability and did not result from the individual's own misconduct." He in essence claims that the alcohol abuse was related to the PTSD which relates to criterion 38 C.F.R. § 21.9520(b). Section 8052 of the Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388- 91, prohibits, effective for claims filed after October 31, 1990, [as in this case] payment of compensation for a disability that is a result of a veteran's own alcohol or drug abuse. Moreover, Section 8052 also amended 38 U.S.C.A. § 105(a) to provide that, with respect to claims filed after October 31, 1990, an injury or disease incurred during active service will not be deemed to have been incurred in line of duty if the injury or disease was a result of the person's own willful misconduct, including abuse of alcohol or drugs. See 38 U.S.C.A. § 105; 38 C.F.R. §§ 3.1(m), 3.301(d). However, the United States Court of Appeals for the Federal Circuit (Court) has held that there can be service connection for compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, his or her service-connected disability. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). The Court indicated that veterans could only recover if they can "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder." Id. at 1381. The Court further stated that such compensation would only result "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." Id. In light of the foregoing, the Board finds that the current claim for educational assistance benefits under Chapter 33 is deferred pending the resolution of the claim of service connection for PTSD, with secondary alcohol abuse. In addition, in his VA Form 9, the Veteran stated that he was "willing to do a video conference if need be" despite his having checked the box on the form which indicates that he does not want a hearing. Therefore, it should be clarified whether he wants a Board video conference hearing. Moreover, the Veteran claims he has appealed his character of discharge. Attempts should be made to determine if his discharge has been upgraded. Accordingly, the case is REMANDED for the following action: 1. Determine if the Veteran wants to testify at a Board video conference hearing. If so, he should be scheduled for this type of hearing. 2. Determine if the Veteran's Character of Discharge has been upgraded. 3. The claim of service connection for PTSD with secondary alcohol abuse should be adjudicated. The Veteran should be notified of this decision and his procedural and appellate rights. 4. Then, readjudicate the claim on appeal in light of the foregoing. If the issue remains denied, the Veteran should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto The appellant has the right to submit additional evidence and argument on the matter or matters 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 2002 & Supp. 2010). _________________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2010), 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) (2010).