Citation Nr: 1329061 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 10-08 250A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to Department of Veterans Affairs educational assistance benefits under the provisions of Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) to be paid at the 100 percent rate. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran has active service in the United States Navy from July 25, 1999 to April 3, 2002. This appeal to the Board of Veterans' Appeals (Board) is from a November 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The Veteran had a total of 978 days of service and a total of 205 days occurred after September 10, 2001. 2. The Veteran was honorably discharged, her reason for separation was for a personality disorder; a VA FET (Front End Tool) Master Record for the Veteran indicates that the Veteran's separation reason has been coded as "CIWD" (Condition Interfering With Duty). 3. The Veteran is service-connected at the 100 percent rate for schizoaffective disorder; she is not service-connected for a personality disorder and did not receive a disability discharge. 4. Overall, the Veteran has just over 6 months creditable active duty service after September 10, 2001; but not 12 months or more. CONCLUSION OF LAW The criteria for an eligibility percentage for educational assistance of more than 50 percent under the Post 9/11 GI Bill have not been met. 38 U.S.C.A. §§ 3311, 3313 (West 2002 & Supp. 2012); 38 C.F.R. § 21.9640 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) outlines procedural assistance VA must provide to Veterans in certain cases. If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied. There are some claims, however, to which the VCAA does not apply. Livesay v. Principi, 15 Vet. App. 165, 178 (2001). Specifically, the VCAA has been held not to apply to claims that, as in this case, turned on statutory interpretation. Smith v. Gober, 14 Vet. App. 227, 231-2 (2000). Thus, because the law as mandated by statute, and not the evidence, is dispositive of this appeal, the VCAA is inapplicable. Mason v. Principi, 16 Vet. App. 129 (2002); see also Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought.). As such, no further action is required pursuant to the VCAA. Chapter 33 Benefits In August 2005, the Veteran initially applied for VA educational assistance benefits. In September 2005, she was awarded benefits pursuant to Chapter 30. In July 2009, the appellant applied for Chapter 33 educational assistance benefits. However, the following month, she withdrew that request, indicating that she wanted to exhaust her Chapter 30 benefits first. Thereafter, she again applied for educational assistance benefits. In November 2009, she was awarded eligibility for Chapter 33 benefits at the 50 percent rate payable. She contends that she should be paid at the 100 percent rate because she was honorably discharged after the requisite amount of service completed and is also service-connected at the 100 percent rate for schizoaffective disorder. A March 24, 2011 rating decision confirmed the 100 percent disability rate, per information contained in VA's Virtual System. In general, VA determines the amount of educational assistance payable for an approved program of education under Chapter 33 based on the aggregate length of creditable active duty service after September 10, 2001. See 38 U.S.C.A. §§ 3311, 3313; 38 C.F.R. § 21.9640. The maximum rate of 100 percent is payable to a Veteran who served at least 36 months of active duty after September 10, 2001. 38 C.F.R. § 21.9640(a). The Veteran in this case had a total of 978 days of service. A total of 205 days occurred after September 10, 2001, and is creditable active duty service for the purpose of Chapter 33 benefits with regard to the rate payable. The Veteran served, in sum, just over 6 months creditable active duty service after September 10, 2001. VA law and regulation proved that a Veteran who serves at least 30 months is paid at the 100 percent rate; who serves at least 30 continuous days and is discharged for a service-connected disability, is paid at the 100 percent rate; serves at least 30 months, but less than 36 months is paid at the 90 percent rate; serves at least 24 months, but less than 30 months is paid at the 80 percent rate; serves at least 18 months, but less than 24 months is paid at the 70 percent rate; serves at least 12 month, but less than 18 months is paid at the 60 percent rate; and who serves at least 6 months, but less than 12 months is paid at the 50 percent rate. 38 U.S.C.A. §§ 3311, 3313 (West 2002 & Supp. 2012); 38 C.F.R. § 21.9640(a) (2012). At the outset, the Veteran, as noted, is service-connected for one disability, schizoaffective disorder, which is rated as 100 percent disabling. Her DD Form 214 reflects that the separation authority was MILPERSMAN 1910-122 and the narrative reason for discharge was a personality disorder. The separation code, HFX, also indicates a personality disorder. The Veteran is not service connected for a personality disorder. The VA FET Master Record indicates that her discharge was coded "CIWD" (Condition Interfering With Duty). Based on the foregoing, the record indicates that the Veteran did not receive a disability discharge from the service department for a service-connected disability (characterized as "DIS"). Because information obtained by the RO indicates that the Veteran's service records do not show that she was not discharged due to a service-connected disability, she cannot be paid at the 100 percent rate on that basis (a Veteran who serves at least 30 continuous days and is discharged for a service-connected disability, is paid at the 100 percent rate). Therefore, in reviewing the Veteran's creditable active duty service after September 10, 2001, the Veteran does not meet the criteria for payment at a higher rate of 60 percent or more. The Veteran served at least 6 months, but less than 12 months. She did not serve at least 12 months, as required by the next higher level. Accordingly, payment of educational assistance under the Post-9/11 GI Bill at a level higher than 50 percent is not warranted. ORDER Payment of educational assistance under the Post-9/11 GI Bill at a level higher than 50 percent is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs