Citation Nr: 1326122 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 11-22 089 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to educational benefits in excess of 23 months and 16 days under Chapter 33, Title 38 of the United States Code (Post-9/11 GI Bill). ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1997 to March 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. 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 Veteran asserts that she is entitled to benefits in excess of 23 months and 16 days for educational assistance under the Post-9/11 GI Bill. She argues that based on an October 26, 2010 letter she received from the Muskogee RO, she is entitled to 35 months and 26 days of full-time benefits under the Post-9/11 GI Bill. See Veteran's Notice of Disagreement, July 2011; see also VA Form 9, August 2011. She also argues that the vocational rehabilitation program she attended should not have counted against her Post-9/11 GI Bill benefits. Id. Congress enacted the Post 9/11 Veterans Educational Assistance Act of 2008 in June 2008. See Pub. L. 110-252, Title V, §§ 5002-5003, June 30, 2008. This represented a new program of education benefits designed for veterans who served on active duty after September 11, 2001. The provisions of the Act are codified at 38 U.S.C.A. §§ 3301-24, with the implementing regulations found at 38 C.F.R. §§ 21.9500-21.9770 (2012). Under the law, a person is limited in the total amount of VA educational benefits they may receive under two or more programs. The aggregate period for which any person may receive assistance under 38 U.S.C. Chapter 31 (Vocational and Rehabilitation Education Services Program) in combination with Chapter 30 (Montgomery GI Bill) and Chapter 33 (Post-9/11 GI Bill) may not exceed 48 months (or the part-time equivalent), unless the Secretary determines that additional months of benefits under Chapter 31 are necessary to accomplish the purposes of a rehabilitation program. See 38 U.S.C.A. § 3695. The RO's March 2011 decision granted the Veteran educational assistance under the Post-9/11 GI Bill and determined that she had 23 months and 16 days of full-time educational benefits remaining. The July 2011 statement of the case further stated that the Veteran used a total of 24 months and 10 days of entitlement under the Vocational and Rehabilitation Education Services Program and 4 days under the Montgomery GI Bill. However, neither the RO's March 2011 decision, nor the July 2011 statement of the case, gives a more detailed account as to how the 23 months and 16 days figure was determined. Without a more detailed accounting of how the 23 months and 16 days figure was reached, the Veteran has not had notice and a fair opportunity to comment on her case. Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, on remand, the RO must prepare a clear accounting of how the Veteran used her educational benefits in arriving at the 23 months and 16 days figure cited in the March 2011 decision and the July 2011 statement of the case. After such accounting is prepared, the RO is to issue a supplemental statement of the case which adequately explains how it reached its determination. If a more detailed accounting is not possible, the RO should provide a full explanation of the reasons for this. Accordingly, the case is REMANDED for the following action: 1. Prepare an accounting regarding the Veteran's use of educational benefits that reflects the dates of each period of school enrollment and the amount (months/days) and type (Chapter) of entitlement used during each period of enrollment. Such accounting should end with the date on which the RO determined that the Veteran had 23 months and 16 days of entitlement remaining. Provide a copy of the accounting to the Veteran, and place a copy in the education folder. If a more detailed accounting is not possible, the RO should provide a full explanation of the reasons for this. 2. Unless the benefit sought on appeal is granted, the Veteran should be furnished an appropriate supplemental statement of the case, to include a full explanation of how the education entitlement and its usage was calculated and citations to the applicable laws and regulations. After providing the Veteran an opportunity to respond, the case should then be returned to the Board for further consideration, if otherwise in order. 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). _________________________________________________ M. E. LARKIN 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).