Citation Nr: 1307627 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 10-40 441A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to educational assistance benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill). ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty from June 2008 to April 2011. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2010 adverse determination of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" (VVA) system to insure a total review of the evidence. The Board is remanding the claim to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. REMAND The Veteran has filed a claim for educational assistance benefits under Chapter 33, Title 38, of the United States Code (Post 9/11 GI Bill). See generally 38 U.S.C.A. §§ 3301-24 (West 2002 & Supp. 2012); 38 C.F.R. § 21.9520 (2012). VA promulgated provisions for eligibility for this benefit based on certain qualifying periods and types of active duty service. Id. An individual may establish eligibility for basic educational assistance under Chapter 33 by showing that he or she had active duty service after September 10, 2001, and: (a) Serves a minimum of 90 aggregate days excluding entry level and skill training (to determine when entry level and skill training may be included in the total creditable length of service, see § 21.9640(a)) and, after completion of such service,- (1) Continues on active duty; (2) Is discharged from service with an honorable discharge; (3) Is released from service characterized as honorable and placed on the retired list, temporary disability retired list, or transferred to the Fleet Reserve or the Fleet Marine Corps Reserve; (4) Is released from service characterized as honorable for further service in a reserve component; or (5) Is discharged or released from service for- (i) A medical condition that preexisted such service and is not determined to be service-connected; (ii) Hardship, as determined by the Secretary of the military department concerned; or (iii) A physical or mental condition that interfered with the individual's performance of duty but was not characterized as a disability and did not result from the individual's own misconduct; or (b) Serves a minimum of 30 continuous days and, after completion of such service, is discharged under other than dishonorable conditions due to a service-connected disability. 38 C.F.R. § 21.9520 (2012). The term "active duty" means full-time duty in the regular components of the Armed Forces or under a call or order to active duty under 10 U.S.C. 688, 12301(a), 12301(d), 12301(g), 12302, or 12304. Active duty does not include, in pertinent part, a period of service required by an officer pursuant to an agreement under 10 U.S.C. 2107(b). 38 C.F.R. § 21.9505 (2012). Here, the Veteran submitted his claim for educational assistance benefits under Chapter 33 in July 2010, while he was still on active duty. The RO denied his claim because of insufficient qualifying active duty service and noted that the Veteran's only service to date was to satisfy a service obligation of the ROTC program and is not considered active duty for purposes of Chapter 33 benefits. The Veteran's VVA file indicates that he was discharged from active duty following certification of this appeal to the Board in December 2010. VA has a duty to verify all of the dates of the Veteran's active duty service as well as the circumstances and character of his discharge. On remand, the Veteran's service personnel records, including his DD Form 214, and his service treatment records, should be obtained to assist in making this important determination. The Veteran's VA disability compensation claims file also needs to be obtained since it, too, may contain information essential to making this important determination; at present, the Board only has at its disposal the Veteran's Chapter 33 Education Folder. Accordingly, the claim is REMANDED for the following additional development and consideration: 1. Obtain the Veteran's VA disability compensation claims file and all service treatment records, service personnel records (including the DD Form 214), and any other evidence indicating his active duty dates and whether he was discharged from service under other than dishonorable conditions due to a service-connected disability. 2. Thereafter, readjudicate the claim educational assistance benefits under Chapter 33 in light of all additional evidence. If the claim is not granted to the Veteran's satisfaction, send him a supplemental statement of the case (SSOC) and give him an opportunity to respond to it before returning the file to the Board for further appellate consideration of his claim. By this remand the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter that the Board has remanded. See 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 or by the Court 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). ____________________________________________ MARK W. GREENSTREET 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).