Citation Nr: 1123124 Decision Date: 06/16/11 Archive Date: 06/28/11 DOCKET NO. 09-44 032 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Basic eligibility for entitlement to Post-9/11 GI Bill educational assistance benefits, in excess of 60 percent. ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran had active service from May 2005 until April 2007. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2009 decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. 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 July 2009 RO decision awarded the Veteran 60 percent of the post-9/11 GI bill benefits, based on the length of time for service. In his July 2009 notice of disagreement, he argues that despite his early administrative discharge, he should receive 100 percent of the post-9/11 GI bill benefits. As reflected in the Veteran's DD Form 214, the Veteran served on active duty with the Marines from May 24, 2005 until April 24, 2007, and was given an honorable discharge at the convenience of the government. It also noted a separation code of JFV1 for a physical condition not disabling, involuntary, under the Separation Authority of "MARCORSEPMAN par 6203.2," which is also known as the Marine Corps Manual. MARCORSEPMAN, par. 6203.2, concerns a "Physical Condition Not a Disability." It states that (a) Whenever a Marine's performance deteriorates or has an adverse effect on others in the unit, commanding officers and subordinate leaders will try to determine the cause. When the command suspects a physical condition interferes with the Marine's effective performance of duty, the Marine should be referred to the appropriate medical authority. If examination by a medical officer confirms that the Marine is suffering from a physical condition apparently beyond the individual's control and indicates that the condition is not a disability, initiate separation proceedings per paragraph 6303 or 6304 as appropriate. Such conditions may include the following: [Continued on Next Page] (1) Obesity. Separation under this basis requires certification by a medical officer or medical board report that the Marine's overweight condition is due to pathological factors, not of a temporary nature, and apparently beyond the Marine's control. See MCO 6100.10B. (2) Bed-wetting (enuresis). (3) Sleepwalking. (4) Chronic air sickness. (5) Chronic motion sickness. (6) Pseudofolliculitis Barbae. Refer to MCO 6310.1B, Pseudofolliculitis Barbae, for details or treatment required before initiation of separation action. (7) Allergy. This includes, but is not limited to, allergy to clothing, boots, bedding, and bee stings, or illness such as asthma and hay fever. (8) Disqualifying Height. Separation on this basis is appropriate when, after a proper enlistment, a Marine cannot be assigned duties appropriate to grade and MOS due to increased height. Before separation, the commander should investigate reassignment options for the Marine. (9) Any additional physical condition which interferes with duty, as determined by the commanding officer and medical officer, that is not considered a physical disability. 38 CFR 21.9640 provides the basis for the amount of benefits a veteran is supposed to receive, under the post-9/11 GI bill, based on length of service. That section indicates that VA will determine the amount of educational assistance payable under 38 U.S.C. chapter 33 as provided in this section. (a) Percentage of maximum amounts payable. Except as provided in paragraph (d) of this section, VA will apply the applicable percentage of the maximum amounts payable under this section for pursuit of an approved program of education, in accordance with the following table: [Continued on the next page] Aggregate length of creditable active duty service after 09/10/01 Percentage of maximum amounts payable At least 36 months1 100 At least 30 continuous days (Must be discharged due to service-connected disability) 100 At least 30 months, but less than 36 months1 90 At least 24 months, but less than 30 months1 803 At least 18 months, but less than 24 months2 703 At least 12 months, but less than 18 months2 60 At least 6 months, but less than 12 months2 50 At least 90 days, but less than 6 months2 40 1Includes entry level and skill training. 2Excludes entry level and skill training. 3If the service requirements are met at both the 80 and 70 percentage level, the maximum percentage of 70 must be applied to amounts payable. The question appears to be whether the Veteran was discharged due to service-connected disability, for a maximum 100 percent payment of post-9/11 GI bill benefits. The record is potentially contradictory as to why the Veteran was discharged from the Marines. The DD 214 does not provide a specific reason. The Veteran submitted a DD Form 2648 in which he wrote that he is "being admin separated for a physical condition (asthma)." However, an April 2007 Administrative Remarks record, from shortly before his discharge, noted that the Veteran was "counseled...concerning your unsatisfactory performance while assigned to the Marine Corps BVP. Due to insufficient effort you have not met your weight/body fat reduction goals prescribed. You are advised that failure to take corrective action and reach your required body composition will result in administrative separation from the USMC for either weight control failure or unsatisfactory performance per paragraphs 6206 and 6215 of MCO P1900.16F." That record was the second such warning associated with the claims file. In his VA Form 9, he also indicated that his asthma hindered him from performing his duties and his ability to stay in shape. The Veteran appears to have been granted service connection for asthma by the RO. The Veteran submitted a copy of the award letter which indicated he had "asthma, exercise induced" and a 10 percent disability rating from April 25, 2007, which is his discharge date. It appears there is a July 2008 rating decision granting service connection for asthma; however, such a document is not associated in the claims file. The RO, in the September 2009 Statement of the Case, indicated "that DoD confirmed that the Veteran was not released due to a service-connected disability. Claimant was released due to a condition with his asthma." However, no such record from the Department of Defense (DoD) is in the claims file. The Board notes that the Veteran's separation examination is not of record and there is no medical evaluation board or other medical evidence of record to indicate reason for discharge. Given the paucity of evidence associated with the claims file to indicate whether the Veteran was discharged for a service-connected disability and the possibly contradictory evidence of record, as indicated by the September 2009 Statement of the Case, the Board finds that a remand is necessary to obtain clarification as to the Veteran's claim. The service records dealing with the Veteran's discharge must be requested prior to Board review of the appellant's claim. 38 C.F.R. § 3.159(c)(1). If the RO/AMC is unable to obtain these records, the Veteran should be provided oral or written notice of that fact. 38 C.F.R. § 3.159(e)(1). Additionally, the RO/AMC should obtain clarification or verification from the Department of Defense, if possible, as to the reason for the Veteran's discharge, including whether he was discharged for his asthma or for any other physical condition. The RO/AMC should also associate with the claims file any relevant evidence and documents surrounding its grant of service connection for asthma. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC shall request and obtain any service treatment records and service personnel records related to the Veteran's reason for discharge not already associated with the claims file. 2. The RO/AMC shall also associate with the claims file the rating decision and any other relevant documents surrounding the grant of service connection for his asthma. 3. The RO/AMC shall clarify and indicate what information it referenced in the September 2009 Statement of the Case to find "that DoD confirmed that the Veteran was not released due to a service-connected disability. Claimant was released due to a condition with his asthma." If that information is not of record, the RO/AMC shall request and obtain verification from the Department of Defense as to the reason for the Veteran's discharge, including whether he was discharged for his asthma or for any other physical condition. 4. If the search for any of the records identified above yields negative results, that fact shall be clearly noted and the Veteran must be informed in writing 5. When the development requested has been completed, the case shall again be reviewed by the RO/AMC on the basis of the additional evidence. If the benefit sought is not granted, the Veteran shall be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ JONATHAN B. KRAMER 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).