Citation Nr: 1123377	
Decision Date: 06/20/11    Archive Date: 06/28/11

DOCKET NO.  10-39 453	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri




THE ISSUE

Entitlement to education benefits under the provisions of Chapter 33, Title 38, United States Code based on active duty service after September 10, 2001 (Chapter 33 or Post-9/11 GI Bill).





ATTORNEY FOR THE BOARD

T. L. Douglas, Counsel



INTRODUCTION

The appellant is a Veteran who served on active duty from August 18, 2009, to November 12, 2009.  His service discharge report, DD Form 214, shows he was credited with two months and 25 days of net active service.  His character of service was uncharacterized and the narrative reason for separation was failed medical/physical procurement standards.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 decision by the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA).  

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

A review of the evidence of record reveals that the Veteran is requesting entitlement to Chapter 33 or Post-9/11 GI Bill education benefits.  He does not claim nor does the evidence show that he served a minimum of 90 days of active duty service.  The Veteran contends, in essence, that he had over 30 days of active duty service and that his discharge was due to a service-connected disability.  Service records show he was treated for corneal ectasia during active service and that it was the opinion of his evaluating physicians that the disorder existed prior to service.  In his September 2010 VA Form 9 the Veteran asserted that he had a claim for VA disability compensation pending.  

The Board notes that VA information management systems, VACOLS (Veterans Appeals Control and Locator System), show the Veteran's notice of disagreement from a May 7, 2010, rating decision was received on November 5, 2010.  There is no indication that a statement of the case has been issued or that a matter in that decision exists within the Board's authority for appellate review.

VA regulations provide that an individual may establish eligibility for Chapter 33 educational assistance if he or she serves a minimum 30 continuous days and, after completing such service, is discharged under other than dishonorable conditions due to a service-connected disability.  See 38 C.F.R. § 21.9520(b) (2010).

The Board finds the Veteran has a pending service connection claim that is inextricably intertwined with the issue on appeal.  This issue is so inextricably intertwined with the issue on appeal that for reasons of judicial economy it must be addressed prior to appellate review.  See Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009) (en banc).

Accordingly, the case is REMANDED for the following action:

The AMC should take appropriate action to determine if the inextricably intertwined service connection claim in this case has been resolved in a final rating decision or to associate the present education issue appeal with any subsequently perfected appeal for entitlement to service connection of an issue pertinent to the present matter on appeal.  Thereafter, if the issue on appeal remains denied the appellant must be provided a supplemental statement of the case, 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 Supp. 2010).



_________________________________________________
S. L. Kennedy
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).