Citation Nr: 1341003 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 11-02 926A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to a benefits payment rate in excess of 40 percent under Chapter 33 (Post-9/11 GI Bill), Title 38 of the United States Code. ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION This appeal comes before the Board of Veterans' Appeals (Board) from an April 2010 decision of the RO in Buffalo, New York. FINDINGS OF FACT 1. The Veteran served on active duty from February 17, 2004 to June 14, 2004. 2. The Veteran was discharged from service due to a service-connected disability. CONCLUSION OF LAW The criteria for a rate of payment of 100 percent of the maximum amounts payable for educational assistance benefits under the Post-9/11 GI Bill have been met. 38 U.S.C.A. § 3311 (West 2002 & Supp. 2012); 38 C.F.R. §§ 21.9520, 21.9640 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Eligibility Percentage for Educational Assistance 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 change in the law was effective from August 1, 2009. The provisions of the Act are codified at 38 U.S.C.A. §§ 3301 -3324, with the implementing regulations found at 38 C.F.R. §§ 21.9500-21.9770 (2012). The governing law specifies 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 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 U.S.C.A. § 3301; 38 C.F.R. § 21.9520(b). The Veteran's discharge (DD Form 214) indicates that the separation authority was AR (Army Regulations) 635-200, paragraph 5-11, and that the narrative reason for separation was "failure to meet procurement medical fitness standards." In April 2004, the Veteran was treated for a left ankle injury. Entrance Physical Standards Board Proceedings showed that the Veteran was identified as having a preexisting left ankle condition with a two-year history of significant trauma to the left ankle. The Veteran's diagnosis was non-union of old fractures, left ankle. It was recommended that he be separated from service as he did not meet the physical fitness standards for enlistment. The Veteran denied having a preexisting left ankle condition. Upon VA examination, X-rays revealed a fragment adjacent to the medial malleolus that was felt to be secondary to an old injury. The diagnosis was left ankle strain. The RO granted service connection for a left ankle condition in January 2007 based on the theory that the Veteran's preexisting left ankle disability was aggravated by his service. In January 2010, the RO initially denied the Veteran's claim for educational benefits, after finding, in relevant part, that he had not been discharged due to a medical condition which had existed prior to service (EPTS). In April 2010, the RO determined that the Veteran was eligible for Education Benefits under the Post-9/11 GI Bill, and that he met the criteria for the 40 percent level. In May 2010, following receipt of the Veteran's notice of disagreement, the RO explained that the Veteran's left ankle disorder was determined to have preexisted his service, that the service branch had reclassified his separation reason as being for a condition that preexisted his service, as opposed to a disability that had directly resulted from his service, and that while his service may have aggravated his previous injuries, this was not classified the same as a service-connected disability which originated during service. The RO stated that VA does not have the authority to change the separation reason designated by a service branch or the Department of Defense. Here, there is no dispute that the Veteran served a minimum of 90 aggregate days excluding entry level and skill training and, after completion of such service was discharged from service with an honorable discharge. His discharge (DD Form 214) shows that he had three months and 28 days of active duty service. Thus, basic eligibility to benefits under Chapter 33 is established. The length of qualifying service determines the amount of the award under Chapter 33. VA will determine the amount of educational assistance payable under 38 U.S.C. Chapter 33 as follows: A 100 percent payment is awarded for at least 36 months active duty service after September 10, 2001, or for at least 30 continuous days where the individual is discharged due to a service-connected disability; a 90 percent payment is awarded for at least 30 months active duty service after September 10, 2001, but less than 36 months; an 80 percent payment is awarded for at least 24 months active duty service after September 10, 2001, but less than 30 months; a 70 percent payment is awarded for at least 18 months active duty service after September 10, 2001, but less than 24 months; a 60 percent payment is awarded for at least 12 months active duty service after September 10, 2001, but less than 18 months; a 50 percent payment is awarded for at least 6 months active duty service after September 10, 2001, but less than 12 months; a 40 percent payment is awarded for at least 90 days active duty service after September 10, 2001, but less than 6 months. 38 U.S.C.A. § 3311; 38 C.F.R. § 21.9640 (emphasis added). Here, the Veteran has been awarded benefits under the Post-9/11 GI Bill at the 40 percent level. This means that he is entitled to 40 percent of the benefits payable under that program. The sole question remaining regarding entitlement to benefits at the 100 percent level is whether the Veteran was "discharged from service due to a service-connected disability." The RO has determined that the Veteran was not discharged due to a service-connected disability, based on information in the Veteran's discharge, and service treatment reports. The Board disagrees. After a review of the evidence, the Board finds that the criteria for an eligibility percentage for educational assistance of 100 percent under the Post 9/11 GI Bill have been met. While it appears that the service department determined that the narrative reason for separation was "failure to meet procurement medical fitness standards," the Board is not bound by the finding of the service organization on the question of whether a particular disorder is service-connected or nonservice-connected. The Board acknowledges that service department findings (i.e., the Army, Navy, and Air Force) are binding and conclusive upon VA for purposes of establishing an individual's service, and that VA does not have the authority to alter the findings of the service department regarding service; however, the service departments do not determine whether any particular disorder is service-connected. Service connection is a concept applicable to disability compensation determinations made by VA. The statutes and regulations pertaining to service connection assign to appropriate VA personnel the roles of factfinder and adjudicator of the question of service connection. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §3.303 (2013). The findings of the service department are certainly evidence to be weighed in making a determination as to service connection; however they are not determinative in that regard. Here, the RO has already made a determination as to service connection. In a January 2007 rating decision, the RO granted service connection for left ankle strain. The fact that the RO granted service connection based on the theory that it was a preexisting condition that was aggravated by service does not change the fact that the Veteran's left ankle condition is now service-connected. Based on the RO's January 2007 decision that is currently in effect, the Board finds that the Veteran was discharged from service due to a service-connected disability. Recognition is given to the fact that there are differences in compensation for disabilities found to be directly related to service and those that were aggravated by service. There is a slight difference between a service connected disability and compensation based on aggravation. However, there is no reason to believe that 38 U.S.C.A. § 3311 was drafted with this differentiation in mind. Therefore, the Board finds that the Veteran is entitled to an eligibility percentage for educational assistance of 100 percent under the Post 9/11 GI Bill. Given the Board's favorable disposition of the instant claim, the Board finds that all notification and development actions needed to fairly adjudicate this appeal had been accomplished. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). ORDER Payment of benefits under the Post-9/11 GI Bill at the 100 percent level is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs