Citation Nr: 1322209 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 13-01 423 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Education Center at the Regional Office (RO) in Muskogee, Oklahoma THE ISSUE Entitlement to basic eligibility for educational assistance under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill). REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran (appellant) served on active duty from August 30 to November 23, 2010, with eight years and one month prior inactive service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 decision of the Regional Education Center at the Muskogee, Oklahoma, RO, which determined that the Veteran had insufficient service to qualify for Post-9/11 G.I. Bill education benefits. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran was discharged for asthma, which preexisted service, but has been service connected on an aggravation basis. 2. The Veteran had 86 continuous days active service after September 10, 2001. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for eligibility for educational assistance under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) have been met. 38 U.S.C.A. §§ 3311, 5107 (West Supp. 2012); 38 C.F.R. §§ 3.102, 21.9520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The claim has been granted, as discussed below. As such, the claim has been substantiated, obviating the need for further discussion of how VA fulfilled the duties to notify and assist in this case. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 21.1031, 21.1032 (2012); Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007). Eligibility for Education Benefits under the Post-9/11 GI Bill The Veteran contends that she is entitled to Post-9/11 GI Bill benefits. For the reasons that follow, the Board agrees and awards the benefits sought. The governing law specifies that an individual may establish eligibility for educational assistance under 38 U.S.C. Chapter 33 based on active duty service after September 10, 2001, if he or she 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 U.S.C.A. § 3301; 38 C.F.R. § 21.9520(b). The Veteran's DD Form 214 states that the reason for discharge was a disability which preexisted service. An October 2010 physical examination note from the Veteran's service treatment records shows a diagnosis of asthma, which preexisted service. A separation from service was recommended. The Veteran contended her discharge was due to her asthma. Although her personnel records identifying the preexisting disability resulting in the discharge were not obtained by the Regional Education Center, the Board finds that the Veteran is competent to report the reason for her discharge. The Veteran was service connected for asthma in a September 2011 rating decision on a service aggravation basis. The Board notes that 38 C.F.R. § 21.9520(b) does not distinguish between disabilities incurred in or aggravated by service. The Board finds that the Veteran was discharged due to a service-connected disability. 38 C.F.R. § 21.9520(b). The Veteran's DD Form 214 shows, and the Department of the Air Force has confirmed, that the Veteran served on active duty from August 30 to November 23, 2010, for a total period of 86 continuous days. She meets the minimum service requirement for Post-9/11 GI Bill benefits for a discharge due to a service-connected disability under 38 C.F.R. § 21.9520(b). The Regional Education Center adjudication appears to have relied on the provisions of 38 C.F.R. § 21.9520(a), rather than 38 C.F.R. § 21.9520(b). 38 C.F.R. § 21.9520(a)(5) provides that a veteran will be eligible for Post-9/11 GI Bill education benefits if he or she serves a minimum of 90 aggregate days excluding entry level and skill training after September 10, 2001, and, after completion of such service, he or she is discharged or released from service for a medical condition that preexisted such service and is not determined to be service-connected; however, the 90 day requirement does not apply in this case because the Veteran is service connected for the disability precipitating discharge from service. For these reasons, and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran had at least 30 days continuous active service after September 10, 2001, and that she was discharged due to a service-connected disability. Eligibility for Post-9/11 GI Bill education benefits is warranted. Consequently, the benefit-of-the-doubt rule applies, and the claim must be granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Eligibility for educational assistance under the Post-9/11 GI Bill is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs