Citation Nr: 1322078	
Decision Date: 07/10/13    Archive Date: 07/18/13

DOCKET NO.  09-37 346A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in St. Petersburg, Florida


THE ISSUE

Entitlement to educational benefits under the Post-9/11 GI Bill program (Chapter 33). 


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran




ATTORNEY FOR THE BOARD

H. Seesel, Counsel


INTRODUCTION

The Veteran served on active duty from May 2001 until October 2001. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 administrative decision by the RO in Atlanta, Georgia.  The jurisdiction of the claims file is now with the RO in St. Petersburg, Florida.

The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if further action is required on his part.


REMAND

The Veteran is seeking educational benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill).  

The Post-9/11 GI Bill was enacted under the Post-9/11 Veterans Educational Assistance Act of 2008, Pub. L. 110-252, Title V, § 5003(c), June 30, 2008, 122 Stat. 2323.  See generally 38 U.S.C.A. §§ 3301-24 (West 2002); 38 C.F.R. § 21.9520 (2012). 

Generally, to be eligible for educational assistance benefits under the Post-9/11 GI Bill, an individual must have served on active duty for a minimum of 90 days after September 10, 2001, and after that period continued on active duty, or was discharged with an honorable discharge.  See 38 U.S.C.A. § 3311; 38 C.F.R. § 21.9520.  

The service requirement is also met by an individual who serves a minimum of 30 continuous days of active duty, and after completion of such service, is discharged under other than dishonorable conditions due to a service-connected disability.  See 38 C.F.R. § 21.9520(b). 

The Veteran's DD Form 214 shows an uncharacterized discharge because she failed the medical/physical procurement standards.  The record suggests that the Veteran may have been discharged from active duty due to her now service-connected bilateral knee disability; however, it is unclear because personnel records potentially showing the reason for discharge are not associated with the claims file.  

Based upon the Veteran's service of at least 30 days, and discharge that was other than dishonorable, she could qualify for Chapter 33 benefits.

Thus, the Board finds that a remand is necessary so attempts can be made to obtain the Veteran's personnel records, and any records related to the reason for her discharge from active duty. 

Accordingly, the case is REMANDED for the following action:

1.  The RO should take all indicated action to request copies of the Veteran's personnel records-to specifically include records related to her not meeting the in-service medical/physical procurement standards-and associate them with the claims files.  

If any requested records are not available, that fact must clearly be documented in the claims file and proper notification under 38 C.F.R. § 3.159(e) should be provided to the Veteran.   

2.  After completing the requested action and any other development deemed to be necessary, the RO must readjudicate any issue remaining on appeal in light of all the evidence of record.  If any benefit sought on appeal remains denied, the Veteran and her representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response.

Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.  

The Veteran 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).


_________________________________________________
STEPHEN L. WILKINS
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).