Citation Nr: 1127276 Decision Date: 07/21/11 Archive Date: 07/29/11 DOCKET NO. 11-09 844 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Eligibility for additional transferred educational assistance benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill). ATTORNEY FOR THE BOARD M. Purdum, Associate Counsel INTRODUCTION The Veteran served in the Army National Guard and had unverified periods of active duty dated from: October 1994 to July 1995; January 1996 to January 1999; May 2000 to July 2000; September 2005 to October 2005; and July 2006 to December 2007. The appellant is the Veteran's daughter. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a September 2010 determination of the Atlanta Education Center that denied eligibility for additional transferred educational assistance benefits under the Post-9/11 GI Bill. 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 Additional development is needed prior to further disposition of the claim. The appellant, the Veteran's daughter, submitted a July 2009 application for transfer of entitlement based upon her father's service in the National Guard. By a number of statements, including a September 2010 statement from the Department of Defense, the Veteran and his daughter were informed that 36 months of transferred educational assistance benefits were available. The appellant thus began her collegiate career. In September 2010, upon receipt of an enrollment certification from the appellant's university, the RO determined that there had been an error in calculating the number of months available for transferred educational assistance benefits. The RO informed the appellant that she had available to her only 4 months and 15 days of benefits available and that she had exhausted such, effective December 16, 2009. The Board notes here that the above-described scenario created a debt to VA and such debt is the subject of a number of statements submitted by the RO and the appellant and her family in the claims file. The RO issued an undated Administrative Decision acknowledging the error as to the numerous notifications sent to both the appellant and the Veteran regarding the educational assistance benefits available for transfer. The RO determined that the appellant, with the exception of advanced funds she received, was not responsible for the debt created. The appellant and her family have submitted a number of statements as to the remaining debt, the advanced funds she received. However, the issue of the propriety of the remaining debt or waiver of the same is not currently before the Board. The only issue properly before the Board is whether the appellant is eligible for additional transferred educational assistance benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill). As discussed in the December 2010 Statement of the Case, the RO denied the appellant additional transferred educational assistance benefits on the basis that the Veteran had already used 43 months and 15 days of educational assistance benefits under Chapter 34, Title 38, United States Code (Vietnam Era GI Bill). The RO informed the appellant that any veteran can only use 48 months of combined entitlement under two different programs, and subsequent to his use of 43 months and 15 days of benefits, he only had 4 months and 15 days to transfer to the appellant under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill). It is significant that in the statements currently associated with the claims file, the Veteran has not argued that he had not used 43 months and 15 days of educational assistance benefits or that there exists circumstances that should extend the 48 months of combined entitlement allowed. On this issue, the Board notes that it does not have before it the Veteran's regular claims file or his education claims file. The Board only has before it the appellant's claims file and in it, the RO's determination that the Veteran had used 43 months and 15 days of educational assistance benefits. The Board is unwilling to accept the Veteran's silence on this issue as acquiescence, especially because the Veteran is not the appellant and while there are statements written by the Veteran associated with the claims file, his daughter is the appellant and the subject of this appeal. As the issue of the number of months and days of educational assistance benefits the Veteran used and thus the number of months and days of benefits available for transfer to the appellant is the determinative issue in the present case, the Board finds that a remand is in order to ensure that all relevant evidence is associated with the claims file. Thus, on remand, an accounting must be made reflecting all months and days of educational assistance benefits, by program, used by the Veteran. While there are a number of Master Records and a work summary associated with the claims file, such do not make clear to the Board the specific benefits the Veteran used prior to the appellant's July 2009 application for transfer of entitlement. Accordingly, the case is REMANDED for the following action: 1. Prepare an audit for the Board and the appellant indicating, clearly, the precise total number of months and days of educational assistance benefits used by the Veteran under any VA education program prior to the applicant's July 2009 application for transfer of entitlement. The audit must make clear the institution and dates of attendance that represent the number of months and days used to calculate the total benefits already used. In this regard, if associating the Veteran's regular claims file and/or education claims file with the appellant's claims file is necessary to provide a complete record to the Board, so associate such file(s). 2. Then, after ensuring any other necessary development has been completed; readjudicate the appellant's claim, considering any additional evidence added to the record. If the action remains adverse to the appellant, provide her with a Supplemental Statement of the Case, allow her an appropriate opportunity to respond thereto, and return the case to the Board. The Board intimates no opinion as to the outcome of this case and the appellant need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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. 2010). _________________________________________________ C. TRUEBA 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).