Citation Nr: 1337286 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 11-13 047 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah THE ISSUE Entitlement to a benefits payment rate in excess of 60 percent for educational assistance under Chapter 33 (Post-9/11 GI Bill), Title 38 of the United States Code. REPRESENTATION The Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran (appellant) served on active duty from August 1997 to January 1998 and from February 2002 to July 2003 with additional unverified service with the U.S. Marine Corps Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 decision of the RO in Muskogee, Oklahoma, which granted entitlement to Post 9/11 GI Bill educational assistance at the 60 percent rate. The Veteran resides in Utah and his claim was transferred to the Salt Lake City RO during the course of this appeal. The Veteran testified before the undersigned at a September 2011 videoconference hearing. A transcript has been associated with the file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND The amount of educational assistance payable under the Post 9/11 GI Bill is calculated in accordance with a table measuring the aggregate length of creditable active duty service after September 10, 2001. 38 C.F.R. § 21.9640 (2013). The RO assigned the 60 percent rating based on 524 days active duty service between February 2002 and July 2003. See 38 C.F.R. § 21.9640(a). The Veteran contends that he is entitled to a 100 percent payment rate because he had more than 30 days active service and was discharged due to a service-connected disability. See 38 C.F.R. § 21.9640(b). A DD 214 is of record indicating that the Veteran was discharged from his February 2002 to July 2003 period of service because of completion of required active service. The RO also queried the Department of Defense which reported that he completed active service in July 2003. The Veteran testified that he was medically discharged from service for PTSD. The record reflects that the Veteran is in receipt of service connection for posttraumatic stress disorder (PTSD) at a 30 percent rating. In support of his contentions, he submitted an August 2004 certificate from the Marine Corps showing transfer to the temporary disability retired list after "2 years of Honorable and Faithful Active Service." He also submitted an honorable discharge certificate from the Marine Corps showing that he was discharged in May 2006. He also submitted a copy of an April 2006 rating decision that states that additional service department records had been received showing a Medical Evaluation Board (MEB), Physical Evaluation Board (PEB) and temporary orders had been received. The official service department records are in conflict as to when the Veteran separated from active service. The education claims file does not contain complete service personnel records or any service treatment records. This information must be obtained, as it would contain evidence showing whether the Veteran was discharged due to a service-connected disability. In addition to the April 2006 rating, the Veteran's electronic, Virtual VA, file contains a March 2007 rating decision indicating additional service department records had been received, but the service treatment records themselves do not appear in the electronic record. These records were associated with the Veteran's paper compensation claims file. There is no mention of whether the Veteran's full service personnel records were associated with compensation claims file. The Board cannot determine whether the Veteran's full service personnel or service treatment records were associated with the compensation claims file. On remand, the compensation claims file must be associated with the education claims file and both the Veteran's service personnel and service treatment records should be obtained from the appropriate Federal agency to the extent they are not already in the compensation claims file. Accordingly, the case is REMANDED for the following action: 1. Associate the Veteran's VA compensation claims file with the education claims file. 2. Obtain the Veteran's complete service personnel and treatment records, including any MEB or PEB records, to the extent they are not already included in the compensation claims file and associate them with the educational claims file. All efforts to obtain service department records should be fully documented. 3. Then, the RO should readjudicate the claim on the merits. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further 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 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. 2013). _________________________________________________ K.J. ALIBRANDO 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) (2013).