Citation Nr: 1325947 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-15 067A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Eligibility for Department of Veterans Affairs (VA) educational assistance benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill). REPRESENTATION Veteran represented by: Allen Gumpenberger, Agent ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran served on active duty from November 2006 to September 2010. He was discharged under honorable conditions (general). This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2010 administrative decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's claim for VA educational assistance benefits under Chapter 33, Title 38, United States Code, otherwise known as the Post-9/11 GI Bil). He appealed the decision with the filing of a notice of disagreement in January 2011, and after the RO issued a statement of the case, he perfected his appeal to the Board with the filing of a substantive appeal in June 2011. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND In a November 2010 administrative decision, the Buffalo, New York RO denied the Veteran's claim for VA educational assistance benefits under Chapter 33, Title 38, United States Code, or Post-9/11 GI Bill, on the basis that he did not meet the provisions for eligibility. Specifically, the RO determined that the Veteran did not receive an honorable discharge and that he was not separated for a medical condition existing prior to service, hardship, or a condition that interfered with duty. Pertinent VA regulations provide 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 satisfies certain requirements. One of those requirements is that the individual serve a minimum of 90 aggregate days excluding entry level and skill training and, after completion of such service, is discharged or released from service for a medical condition that preexisted such service and is not determined to be service-connected; a hardship, as determined by the Secretary of the military department concerned; or 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. 38 C.F.R. § 21.9520(a). Alternatively, the individual may establish eligibility 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 C.F.R. § 21.9520(b). A preliminary review of the record shows that after the Buffalo RO denied the Veteran's claim for education benefits in November 2010, the Hartford, Connecticut RO in a February 2012 rating decision granted the Veteran's claim for disability compensation, namely, entitlement to service connection for major depressive disorder, for which the RO assigned a 50 percent rating and an effective date of October 1, 2010. The award was based in part on a March 2011 VA examiner's diagnosis of major depressive disorder, the symptoms of which the examiner felt had surfaced while the Veteran was in service. The Buffalo RO has not considered this award and the evidence supporting it. In light of this intervening development and the requirements for establishing eligibility for Chapter 33 education benefits, the RO should reconsider the Veteran's claim for education benefits. Additionally, the RO should ensure that the RO has complied with all regulations pertaining to VA's duty to notify and assist a claimant for education benefits. See 38 C.F.R. §§ 21.1031, 21.1032. Accordingly, the case is REMANDED for the following action: 1. Ensure compliance with VA's duties to notify and assist a claimant for education benefits under Chapter 33, in accordance with 38 C.F.R. §§ 21.1031, 21.1032. 2. Thereafter, readjudicate the claim currently on appeal, to include consideration of all evidence in the claims files (both paper and electronic versions) and the award of service connection for major depressive disorder by the Hartford RO in a February 2012 rating decision. If the benefit sought in connection with the claim remains denied, the Veteran and his representative should be provided with a supplemental statement of the case and an appropriate time period within which to respond. The case should then be returned to the Board for review. The Veteran 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 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). _________________________________________________ ALAN S. PEEVY 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 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 the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2012).