Citation Nr: 1338527 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 13-07 840 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to educational benefits in excess of 48 months under Chapter 33, Title 38 of the United States Code (Post-9/11 GI Bill). ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The appellant is a Veteran who served on active duty in the Army National Guard from October 2001 to July 2002, March 2003 to July 2004 and October 2004 to January 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 decisional letter 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 he has remaining entitlement to benefits for educational assistance under the Post-9/11 GI Bill. He argues that he has "used less than 31 months and 25 days of Vietnam Era GI Bill, but the VA Education Center cannot confirm this." See VA Form 9, Appeal to Board of Veterans' Appeals (Board), March 2013. He requests "an audit of the transcripts that were used to determine his disqualification for the post 9/11 GI Bill." See Notice of Disagreement, October 2012. 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 September 2012 decisional letter determined that the Veteran did not qualify for the Post-9/11 GI Bill because he had exhausted all of his education benefits under multiple VA education programs. The January 2013 statement of the case further stated that the Veteran used the maximum allowable 48 months of entitlement (31 months and 25 days entitlement under the Vietnam Era GI Bill (Chapter 34) and 16 months and 5 days entitlement under the Vocational, Rehabilitative, and Employment (Chapter 31) program); hence, there was no remaining entitlement for the Veteran to use under the Post-9/11 GI Bill. However, neither the September 2012 decisional letter nor the January 2013 statement of the case gives a more detailed account as to how the maximum allowable 48 months of educational benefits used was determined. Without a more detailed accounting of how the 48 months figure was reached, the Veteran has not had notice and a fair opportunity to comment on his case. Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, on remand, the RO must prepare a clear accounting of how the Veteran used his educational benefits in arriving at the 48 months figure cited in the September 2012 decisional letter and the January 2013 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 why. On remand, the RO should associate with the paper claims file or Virtual VA any outstanding evidence relied on in the September 2012 decisional letter, including any temporary file. Accordingly, the case is REMANDED for the following action: 1. Associate with the paper claims file or Virtual VA all pieces of evidence relied on in the September 2012 decisional letter that are not currently associated with the claims file or on Virtual VA, to include any temporary folder(s) and any vocational rehabilitation file. 2. 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 48 months. 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 why. 3. 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 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). _________________________________________________ MICHAEL MARTIN 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).