Citation Nr: 1325731	
Decision Date: 08/14/13    Archive Date: 08/16/13

DOCKET NO.  10-21 920	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to educational assistance benefits under Chapter 33 of Title 38 of the United States Code (Post-9/11 GI Bill).


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

M. Peters, Associate Counsel


INTRODUCTION

The Veteran had active duty service from May 2005 to January 2008.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to Post-9/11 GI Bill educational benefits.  The Veteran timely appealed that decision.

This case was initially before the Board in December 2011, when it was remanded to the RO in order to schedule the Veteran a hearing before the Board.  In a July 2012 letter, the Veteran was informed that he was scheduled for a hearing in August 2012; he failed to appear for that scheduled hearing, and as of this time he has not provided any good cause for failing to report for that hearing.  Accordingly, the Board finds that the Veteran has withdrawn his request for a hearing, and will proceed to adjudication of the claim at this time.  

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

In the last adjudication of the Veteran's educational benefits claim-a March 2010 statement of the case-the RO indicated that it reviewed the Veteran's Department of Defense records as well as his Form DD 214.  On the basis of that review, they determined that the Veteran's "under other than honorable conditions" discharge made him ineligible for benefits.  

After review of the claims file, the Board notes that a March 2008 VA administrative decision found that the Veteran's discharge was "honorable" for VA purposes.  It does not appear that the RO reviewed this administrative decision in its initial adjudication of the Veteran's educational benefits claim, and such review may potentially lead the RO to draw a different conclusion in this case.  

Accordingly, the Board finds that a remand is necessary in order for the RO to review the claims file in its entirety, to include the March 2008 VA administrative decision, and readjudicate the claim following such review.

Accordingly, the case is REMANDED for the following action:

The RO should review the Veteran's entire claims file, including the claims file, educational claims file, and specifically the March 2008 VA Administrative Decision regarding his character of discharge.  Following that review, the RO should readjudicate the Veteran's claim for educational assistance benefits under Chapter 33 of Title 38 of the United States Code (Post-9/11 GI Bill).  If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board.

The appellant has the right to submit additional evidence and argument on the matter 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).



_________________________________________________
J. A. MARKEY
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).