Citation Nr: 1300658 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 10-18 396A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to extension of the delimiting date for the award of educational assistance benefits under Chapter 30, Title 38, United States Code, beyond January 12, 2008. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran served on active duty from August 1995 to January 1998, with subsequent service in the Unites States Army Reserves and the Georgia Army National Guard. This matter comes to the Board of Veterans' Appeals (Board) from an August 2009 decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board previously remanded this case in August 2011 to afford the Veteran a Board hearing. The Veteran testified at a Board hearing at the local RO before the undersigned Veterans Law Judge in January 2012. A review of the Virtual VA claims processing system does not include any additional documents pertinent to the appeal. 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 At the January 2012 Board hearing, the Veteran submitted additional evidence that had not been considered by the RO. The appellate scheme set forth in 38 U.S.C.A. § 7104(a) (West 2002) contemplates that all evidence will first be reviewed at the RO so as not to deprive the claimant of an opportunity to prevail with his claim at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). At the Board hearing, the Veteran requested that this case be returned to the RO for consideration of the additional evidence. Accordingly, the appeal must be returned to the RO. Moreover, the law provides a ten-year period of eligibility during which an individual may use his entitlement to educational assistance benefits; that period begins on the date of the veteran's last discharge from active duty. 38 U.S.C.A. § 3031(a); 38 C.F.R. § 21.7050. It appears that the RO assigned the current delimiting date of January 12, 2008 based on the Veteran's discharge from active duty in January 1998. However, in statements of record and at the Board hearing, the Veteran has contended that he subsequently had service beginning in 1998 in the Army Reserves as well as the Georgia Army National Guard, including periods of active duty for training (ACDUTRA) for at least 90 days in 2006 and 2007. Specifically, as a member of the Reserves, he was with 3rd MEDCOM in Fort Gillem, Forest Park, Georgia. As a member of the National Guard, the Veteran is attached to the 1188 MIL in Decatur, Georgia. In support of his contentions, the Veteran submitted a January 2011 order showing that he was discharged from the United States Army Reserve in January 2011. He also submitted a September 2006 order requiring him to report for active duty in October 2006. Educational benefits are available to members of the Selected Reserve under Chapter 1606, Title 10, United States Code. See 10 U.S.C.A. § 16132 (West 2002). In pertinent part, a reservist initially becomes eligible when he/she enlists, reenlists, or extends an enlistment as a reservist so that the total period of obligated service is at least 6 years from the date of such enlistment, reenlistment, or extension. 38 C.F.R. § 21.7540. If a reservist is serving in the Selected Reserve, but does not have a 6 year contract, he/ she does not have a basic eligibility date. The basic eligibility date is the date on which service commences for the contracted 6 year period. An individual may also establish eligibility for basic educational assistance under Chapter 30 based on a combination of service on active duty and service in the Selected Reserve. This is known as the "2x4" program. The individual must, after June 30, 1985, either first become a member of the Armed Forces, or first enter on active duty as a member of the Armed Forces. 38 U.S.C.A. § 3012(a)(1); 38 C.F.R. § 21.7042(b)(1). The individual before completing the service requirements of this paragraph must either complete the requirements of a high school diploma (or an equivalency certificate), or successfully complete (or otherwise receive academic credit for) 12 semester hours (or the equivalent) in a program of education leading to a standard college degree. 38 U.S.C.A. § 3012(a)(2); 38 C.F.R. § 21.7042(b)(2). The individual must serve at least two years of continuous active duty in the Armed Forces characterized by the Secretary concerned as honorable service. 38 U.S.C.A. § 3012(a)(1); 38 C.F.R. § 21.7042(b)(3). After completion of active duty service, the individual must serve at least four continuous years of service in the Selected Reserve. An individual whose release from active duty service occurs after December 17, 1989, must begin this service in the Selected Reserve within one year from the date of his or her release from active duty. During this period of service in the Selected Reserve the individual must satisfactorily participate in training as prescribed by the Secretary concerned. 38 U.S.C.A. § 3012(a)(1); 38 C.F.R. § 21.7042(b)(4). The individual must, after completion of all service described above, be discharged from service with an honorable discharge, placed on the retired list, or transferred to the Standby Reserve or an element of the Ready Reserve other than the Selected Reserve after service in the Selected Reserve characterized by the Secretary concerned as honorable service. In the alternative, the individual may continue on active duty or in the Selected Reserve. 38 U.S.C.A. § 3012(a)(3); 38 C.F.R. § 21.7042(b)(5). The regulations also provide for dual eligibility. See 38 C.F.R. § 21.7042(d). A veteran who has established eligibility after serving at least two years of continuous active duty of an obligated period of active duty of less than three years, as provided by 38 C.F.R. § 21.7042(a)(2), may attempt to establish eligibility under the 2x4 provisions of 38 C.F.R. § 21.7042(b). If the veteran fails, they retain their eligibility under paragraph (a). However, in the instant case, as it is not addressed in the statement of the case, it does not appear that the RO has adequately considered the Veteran's Reserve and National Guard service when determining the Veteran's delimiting date. Accordingly, the RO should contact the Department of Defense (DOD) to obtain any necessary information regarding the Veteran's eligibility under Chapter 30. Further, given that the Veteran has also asserted that he had 90 days of continuous active duty service in 2006 and 2007, the RO should obtain the Veteran's United States Army Reserve and Georgia Army National Guard records, to specifically include periods of ACDUTRA and any DD Forms 4/1, 4/2 and DA Form 5261. Lastly, in several notices sent to the Veteran prior to the August 2009 decision, the Veteran was told that his delimiting date was January 13, 2012. It appears that the August 2009 determination was the first time the Veteran was told that his delimiting date was actually January 12, 2008. The RO has not adequately explained why the initial January 13, 2012 date was determined and subsequently found to be inaccurate. In a September 2008 notice, the RO refers to an August 19, 2008 letter. It does not appear that this letter is associated with the claims file. As it is relevant to the issue on appeal, the RO should associate this letter with the record. Accordingly, the case is REMANDED for the following action: 1. Appropriate action should be taken by the RO to associate the August 19, 2008 letter referred to in the September 2008 letter with the claims file. 2. Appropriate action should be taken to contact DOD to determine whether the Veteran is eligible for additional benefits under Chapter 30. The DOD should be asked to provide an explanation for the determination. The RO should request that DOD provide the VA copies of any information in its possession used to make this determination. 3. Appropriate action should be taken to obtain the Veteran's United States Army Reserve and Georgia Army National Guard records, to specifically include periods of ACDUTRA and any DD Forms 4/1, 4/2 and DA Form 5261. 4. Thereafter, and any further development deemed necessary by the RO, the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted, the Veteran should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate opportunity to respond thereto. The SSOC should specifically address why the initial January 13, 2012 date was determined and subsequently found to be inaccurate. It should also address whether the Veteran's subsequent Reserve and National Guard service affect his current delimiting date, including any additional periods of 90 days of continuous service. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. 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. 2012). _________________________________________________ MARJORIE A. AUER 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) (2012).