Citation Nr: 1418793 Decision Date: 04/28/14 Archive Date: 05/06/14 DOCKET NO. 10-22 360A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to basic eligibility for Post-9/11 GI Bill (Chapter 33) educational assistance benefits. ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel WITNESS AT HEARING ON APPEAL Veteran INTRODUCTION The Veteran had honorable active service from April 27, 2006 to August 15, 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Muskogee, Oklahoma, which determined the Veteran had insufficient qualifying active duty after September 10, 2001, to warrant approval at any level of Chapter 33 education benefits. The Veteran requested a hearing before the Board. The requested hearing was conducted in January 2011 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. There are no VA paperless claims files associated with the Veteran. The issues of entitlement to a psychiatric disorder, to include depression: and for residuals of a head injury, have been raised by the record but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2013). FINDINGS OF FACT 1. The Veteran served on active duty with the United States Army from April 27, 2006 to August 15, 2006, after which he was discharged (uncharacterized) due to a condition, not a disability. 2. The Veteran served for a total of approximately 111 days (less than 24 months on active duty); and did not complete his initial period of basic/skills training; accordingly this time period may not be credited towards determining the length of creditable active duty for purposes of establishing the payment rate for Chapter 33 (Post 9/11 GI Bill) education benefits. 3. The Veteran was not discharged due to service-connected disability and has no creditable period of service since September 10, 2001, for purposes of establishing eligibility for Chapter 33 (Post 9/11 GI Bill) education benefits. CONCLUSION OF LAW The Veteran is not eligible for Post-9/11 GI Bill (Chapter 33) educational assistance benefits. 38 U.S.C.A. § 3311 (West 2002 & Supp. 2013); 38 C.F.R. §§ 21.9500, 21.9505, 21.9520, 21.9640 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). For educational assistance claims, the regulations delineating the specific notification and assistance requirements are set forth in 38 C.F.R. §§ 21.1031, 21.1032. These provisions apply to the Post 9/11 GI Bill program. 38 C.F.R. § 21.9510 (2013). A duty to assist letter relating to the Veteran's claim for Chapter 33/Post-9/11 GI Bill educational benefits was issued in September 2009, prior to the initial adjudication of the claim in October 2009. In this case, however, the essential facts are not in dispute; the case rests on the interpretation and application of the relevant law. The VCAA does not affect matters on appeal when the issue is limited to statutory interpretation. See Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also VAOPGCPREC 2-2004 (2004), 69 Fed. Reg. 25180 (2004) (holding that VCAA notice was not required where evidence could not establish entitlement to the benefit claimed). There is no possibility that any additional notice or development would aid the Veteran in substantiating his claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); see Dela Cruz. Thus, any deficiency of notice or of the duty to assist constitutes merely harmless error. Further, during the January 2011 hearing, the undersigned Veterans Law Judge explained the elements of the claim, asked questions to obtain relevant information, and summarized the Veteran's arguments. The Veteran has not argued that VA failed to comply with the duties as set forth in 38 C.F.R. 3.103(c)(2), or identified any prejudice as a result of the hearing. Moreover, following the hearing, the case was remanded by the Board for additional evidentiary development. There has been substantial compliance with the Board's remand directives such that no further action is necessary in this regard. See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board's remand directives is required). VA has substantially complied with such duties, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010). There is no indication or argument that any notification deficiencies resulted in prejudice or otherwise affected the essential fairness of the proceedings. Rather, the Veteran has had a meaningful opportunity to participate in the adjudication. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). II. Chapter 33 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 to 3324 (West Supp. 2013) with the implementing regulations found at 38 C.F.R. §§ 21.9500 to 21.9770 (2013). Under these provisions, an eligible individual is entitled to a maximum of 36 months of educational assistance. 38 C.F.R. § 21.9550(a). In pertinent part, eligibility for educational assistance under Chapter 33 based on active duty service after September 10, 2001, may be established in two ways. First, the individual must have served a minimum of 90 aggregate days of active duty (excluding active duty for entry level and skill training) and, after completion of such service: (1) continued on active duty; (2) was discharged from service with an honorable discharge; (3) was released from service characterized as honorable and placed on the retired list, temporary disability retired list, or transferred to the Fleet Reserve or the Fleet Marine Corps Reserve; (4) was released from service characterized as honorable for further service in a reserve component; or (5) was discharged or released from service for a medical condition that preexisted such service and is not determined to be service-connected; hardship, as determined by the Secretary of the military department concerned; or a physical or mental condition that interfered with the individual's performance of duty but was not characterized as a disability and did not result from the individual's own misconduct. 38 U.S.C.A. § 3311(b)(8); 38 C.F.R. § 21.9520(a). Alternatively, the individual must have served a minimum of 30 continuous days on active duty and, after completion of such service, was discharged or released from active duty under other than dishonorable conditions due to a service-connected disability. 38 U.S.C.A. § 3311(b)(2); 38 C.F.R. § 21.9520(b). The post-9/11 GI Bill defines "active duty" as full-time duty in the regular components of the Armed Forces or under a call or order to active duty under 10 U.S.C.A. §§ 688, 12301(a), (d), (g), 12302, 12304. See 38 C.F.R. § 21.9505. Aggregate length of creditable active duty service after September 10, 2001 determines the percentage of maximum amounts payable. The table is as follows, in pertinent part: 40 percent with at least 90 days, but less than 6 months, of creditable active duty service; 50 percent with at least 6 months, but less than 12 months, of creditable active duty service; 60 percent with at least 12 months, but less than 18 months, of creditable active duty service; 70 percent with at least 18 months, but less than 24 months, of creditable active duty service; 80 percent with at least 24 months, but less than 30 months, of creditable active duty service; 90 percent with at least 30 months, but less than 36 months, of creditable active duty service; 100 percent with at least 36 months of creditable active duty service or with at least 30 continuous days of creditable active duty service and a discharge due to a service-connected disability. 38 U.S.C.A. §§ 3311, 3313; 38 C.F.R. § 21.9640. Notes associated with the provisions of 38 C.F.R. § 21.9640 indicate that where the aggregate length of active duty is at least 90 days but less than 24 months, periods of entry level and skill training must be excluded for purposes of determining the length of creditable service and maximum rate payable for Chapter 33 educational benefits. 38 U.S.C.A. §§ 3311(b), 3313(c) (West Supp. 2013); 38 C.F.R. § 21.9640(a) (2013). In August 2009, the Veteran applied for Chapter 33 (Post 9/11 GI Bill) education benefits. Information obtained for the file includes the Veteran's DD 214 Form and documentation from a VA data base to the effect that the Veteran served on active duty with the United States Army from April 27, 2006 to August 15, 2006, a total of approximately 111 days. The Veteran's discharge was uncharacterized, but described as due to a condition, not a disability. In October 2009, the RO in Muskogee, Oklahoma issued to the Veteran notice that his claim for Chapter 33 Post-9/11 GI bill benefits was not approved. He was informed that he had insufficient qualifying service after September 10, 2001, as he did not have an aggregate of 90 days of qualifying active duty service, nor was he discharged due to disability after serving 30 continuous days of active duty service. The Veteran presented testimony at a travel Board hearing held in January 2011. He stated that he completed 31/2 months of training, which he did not finish due to depression. He mentioned that at that point, his commander informed him that he was physically incapable of service. Pursuant to a Board remand issued in December 2011, it was noted that the existing record did not contain any service department records beyond the DD 214 Form, and that as a result, it was unclear why the Veteran was discharged and if he completed his training. Complete service department records were requested. Service department records include a medical evaluation board (MEB) report indicating that the Veteran was admitted for mania with psychotic features on the 4th day of basic training. The report mentioned that a private psychiatrist, Dr. L., had treated the Veteran for bipolar disorder from August 2005 to March 2006, and had refused to provide a psychiatric endorsement for military service for the Veteran. While hospitalized, the Veteran assaulted a guard by head butting him, and was sent to jail for 3 days. Ultimately bipolar disorder was diagnosed, and it was determined that this condition existed prior to service. It was further determined that the Veteran failed to meet the retention standards, as a result of psychosis and mood disorders. Expeditious discharge was approved in August 2006 and the Veteran was discharged from service with an uncharacterized separation. The Veteran contends that he is entitled to Chapter 33 educational assistance benefits because he had 30 days of continuous service on active duty, and he was discharged due to a service-connected condition. Alternatively, he asserts that he received an honorable discharge after more than 90 days of active duty service, as a result of a medical condition which interfered with duty. In this case, the Veteran did not complete a total of at least 24 months of active duty, did not complete his first term of enlistment; and did not complete his entry level and skills training. Accordingly, none of his 111 days of active duty service may be credited towards determining the length of creditable active duty for purposes of establishing the payment rate for Chapter 33 (Post 9/11 GI Bill) education benefits. Pursuant to VA law and regulations found at 38 U.S.C.A. §§ 3311, 3313; and 38 C.F.R. § 21.9640, since the Veteran's aggregate duration of active duty was less than 24 months, his (uncompleted) period of training, in this case all 111 days of his active duty service, must be excluded in calculating the creditable length of service for establishing the rate of entitlement to educational assistance under the Post-9/11 GI Bill. 38 U.S.C.A. § 3322(b). As the Veteran did not serve a minimum of 90 aggregate days of active duty (excluding active duty for entry level and skill training), there is no basis for establishing eligibility under 38 U.S.C.A. § 3311(b)(8); 38 C.F.R. § 21.9520(a), and the other 5 factors need not be considered. The Board acknowledges that the Veteran did serve a minimum of 30 continuous days on active duty; however, he was not discharged or released from active duty under other than dishonorable conditions due to a service-connected disability. In this regard, the Board notes that the Veteran may in the future pursue a service connection claim for the condition (bipolar disorder) which in effect led to his discharge. However, at this time this condition is not service-connected and accordingly, eligibility cannot be established under 38 U.S.C.A. § 3311(b)(2); 38 C.F.R. § 21.9520(b). The Board acknowledges that the Veteran is competent to report his dates of service, the nature of such service, and the reasons for his discharge. However, the Veteran's understanding of the nature of his service from April 27, to August 15, 2006, to include whether it constituted active duty which may be credited for purposes of determining eligibility for Chapter 33 benefits; and his mere contentions that the medical condition leading to his discharge is service-connected, are inconsistent with the objective, factual information found in the file to include contemporaneous service department and separation records. As such the documentary evidence on file, including service department and separation records, are the most probative evidence of record in this case, as they represent the most objective and factual accurate evidence on these matters. The Board is sympathetic to the Veteran's claim; however, educational assistance benefits under Chapter 33 are prefaced on specific and unambiguous legal requirements, which have not been met. The Board has no authority to grant claims on an equitable basis and, instead, is constrained to follow the specific provisions of law. See 38 U.S.C.A. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998). In view of the foregoing discussion, the Board finds that the Veteran lacks qualifying service to be eligible for Post-9/11 GI Bill educational assistance benefits under Chapter 33. The legal criteria in this case are clear and the law is dispositive of the claim on appeal. See Sabonis v Brown, 6 Vet. App. 426 (1994). Consequently, there is no basis for establishing basic eligibility for Post-9/11 GI Bill (Chapter 33) educational assistance benefits. As such, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Basic eligibility for Post-9/11 GI Bill (Chapter 33) educational assistance benefits is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs