Citation Nr: 1315403 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 12-03 754 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to VA educational assistance benefits under Chapter 33, Title 38, United States Code. 2. Entitlement to VA educational assistance benefits under Chapter 30, Title 38, United States Code. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active duty service in the U.S. Navy from May 1988 to October 1990 and from January 2004 to March 2004. She has also had periods of service in the Navy Reserves and Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In December 2012, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development and consideration. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 The United States Court of Appeals for Veterans Claims (Court) has held that a remand by the Board confers on a veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court has indicated, additionally, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. As noted in the introduction, the Board remanded the case in December 2012 to the AOJ for additional development and consideration. First, the Board instructed the AOJ to send a notice letter to the Veteran informing her of the information and evidence needed to substantiate her claims for educational assistance benefits under both Chapter 33, Title 38, United States Code (commonly referred to as the Post-9/11 GI Bill) and Chapter 30, Title 38, United States Code (commonly referred to as the Montgomery GI Bill-Active Duty (MGIB-AD)). The letter was also to ask her to present evidence that she has had National Guard service for the purpose of organizing, administering, recruiting, instructing, or training the National Guard after September 10, 2001. It does not appear that a letter was sent to the Veteran on remand; therefore, the Board finds it necessary to remand the case to accomplish this development. See Stegall, 11 Vet. App. at 271. In addition, a March 2012 supplemental statement of the case (SSOC) referenced a denial of educational assistance benefits under MGIB-AD in August 1994. In the remand, the Board requested that the AOJ associate with the claims file any records concerning the educational assistance claim that was denied in August 1994 that was referenced in the March 2012 SSOC. This was also not accomplished; thus, a remand is also necessary to complete this development. See Stegall, 11 Vet. App. at 271. Finally, the Veteran submitted additional personnel records subsequent to the readjudication of the claim by the RO in the March 2012 SSOC. In the December 2012 remand, the Board instructed that any subsequently-issued SSOC include consideration of all evidence added to the claims file since the March 2012 SSOC and include consideration of a June 2006 letter from the Army National Guard GI Bill Support Team. When the claims were readjudicated in a January 2013 SSOC, the RO considered the June 2006 letter but indicated that there was no additional evidence since March 2012. On remand, any SSOC that is issued must take into consideration any evidence that the Veteran has submitted since the March 2012 SSOC. See Stegall, 11 Vet. App. at 271. Accordingly, this case is REMANDED for the following actions: 1. Send a notice letter to the Veteran informing her of the information and evidence needed to substantiate her claims for educational assistance benefits under both the Post-9/11 GI Bill and the MGIB-AD. Ask her to present evidence that she has had National Guard service for the purpose of organizing, administering, recruiting, instructing, or training the National Guard after September 10, 2001. 2. Associate with the claims file any records concerning the educational assistance claim that was denied in August 1994 that was referenced in the March 2012 SSOC. 3. Finally, after undertaking any other development deemed appropriate, readjudicate the issues of entitlement to VA educational assistance benefits under both Chapter 33 and Chapter 30. If any benefit sought is not granted, furnish the Veteran with an SSOC and afford her an opportunity to respond before the record is returned to the Board for further review. The SSOC must include consideration of all evidence added to the claims file since the March 2012 SSOC. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until she is notified by VA. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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). _________________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).