Citation Nr: 1122829 Decision Date: 06/14/11 Archive Date: 06/28/11 DOCKET NO. 10-32 509 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a higher (than 60 percent) rate of educational assistance under Chapter 33, Title 38, of the United States Code (post-9/11 GI Bill). ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1989 to July 1989, October 1991 to March 1992, July 1994 to January 2004, and from February 2004 to March 2005. This matter is before the Board of Veterans' Appeals (Board) from a March 2010 administrative decision by the Muskogee, Oklahoma Department of Veterans Affairs (VA) Regional Office (RO) that granted the Veteran entitlement to educational benefits (at a 60 percent rate) under Chapter 33, Title 38, of the United States Code (post-9/11 GI Bill). The Veteran's claims file is now in the jurisdiction of the Oakland, California RO. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND At the outset, the Board notes that the post-9/11 educational assistance program was enacted by Congress in June 2008. See Pub. L. No. 110-252, Title V, §§ 5001-5003, 122 Stat. 2357 (2008). The statutory provisions are codified at Title 38 of the United States Code, Chapter 33. VA promulgated new regulations to implement the change in law in March 2009. See 74 Fed. Reg. 14,654-14,694 (Mar. 31, 2009). The regulations are codified at 38 C.F.R. §§ 21.9500-21.9770 (2010). As noted above, the March 2010 administrative decision on appeal granted the Veteran entitlement to educational assistance under Chapter 33 at a 60 percent rate, reflective of at least 12 months, but less than 18 months, of creditable active duty service after September 10, 2001. 38 C.F.R. § 21.9640. The July 2010 Statement of the Case (SOC) issued in this matter states that only the period of service performed on or after September 11, 2001, is qualifying service for the post-9/11 GI Bill, and that the active duty service qualifying for the post-9/11 GI Bill was the Veteran's service from July 1994 to January 2004. Comparing the explanation in the SOC to the evidence of record the Board finds: The Veteran had active duty service from July 1994 to January 2004 (which appears to include approximately 27 months of service creditable under the post-9/11 GI Bill). He had subsequent active duty service from February 2004 to March 2005, and received an honorable discharge. See DD-214 Forms. A March 2010 RO letter to the Veteran states that only his service from February 2004 to March 2005 may be considered in determining his rate of educational assistance, and appears inconsistent with the explanation provided in the SOC. The Veteran has not been provided an adequate explanation for the denial of the benefit sought in this appeal, and corrective action is necessary. Accordingly, the case is REMANDED for the following: The RO should readjudicate the Veteran's claim seeking entitlement to a higher (than 60 percent) rate of educational assistance under Chapter 33 (the post-9/11 GI Bill) in light of the observations outlined above. If the benefit sought remains denied, the RO should issue an appropriate supplemental SOC (SSOC) in the matter, i.e., advising the Veteran of the specific basis for the denial (identifying all periods of service recognized as creditable, and explaining why other period s are not. If a period of post-9/11 service is determined to not be creditable service, the reason must be explained in theSSOC in detail (with citation to the specific governing statute/regulation). The Veteran should be afforded ample opportunity to respond, after which the case should be returned to the Board, if in order, 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ George R. Senyk 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) (2010).