Citation Nr: 1428082 Decision Date: 06/20/14 Archive Date: 06/26/14 DOCKET NO. 12-33 646A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to Department of Veterans Affairs (VA) educational assistance benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant served on active duty from November 2006 to April 2007, and from January 2009 to June 2009. This matter comes properly before the Board of Veterans' Appeals on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Houston, Texas. Following the perfection of her appeal, the appellant proffered testimony before the undersigned Veterans Law Judge (VLJ) in September 2013. A transcript of that hearing has been prepared and has been included in her claims file for review. The Board notes that when the appellant originally began her appeal, she had selected the Texas Veterans Commission as her accredited representative. This organization appeared with the appellant when she proffered testimony in September 2013. However, in February 2014, the appellant changed her representation to the Veterans of Foreign Wars of the United States, and this change has been noted above. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). Upon review, it is the conclusion of the Board that the appeal must be REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The appellant claims that she is entitled to VA education benefits. She has maintained that she had five months of active duty service after she enlisted, along with an additional six-plus months in 2009. She further contends that all of this service was "honorable." A review of the appellant's education file suggests that there may have been some confusion by the RO when it was reviewing the claim. That is, at one point it appears that RO personnel believed that the appellant may have not had credible, honorable service. Moreover, when the appellant originally filed her claim, only one of her periods of active duty service was confirmed by the Department of Defense whereas the other was not noted. Also, it appears that the appellant's original orders to active duty in 2009 may have been extended to September 2009 based on the fact that she was provided TDY (temporary duty) orders from June 2009 to September 2009. It is unclear whether the appellant served this duty or if she did, whether this active duty time period was included when a determination was made concerning her claim for benefits. 38 C.F.R. §§ 21.1031, 21.1032, and 21.1033 (2013) govern VA's duty to assist claimants in developing claims for VA education benefits. As a part of the duty to assist, the VA must ensure that all notification requirements and development procedures contained in 38 C.F.R. §§ 21.1031, 21.1032, 21.1033 were completed. After reviewing the appellant's education folder, it is unclear whether the RO issued the necessary (and complete) duty to assist notification letters in accordance with 38 C.F.R. § 21.1031 as amended in 2007, nor is there indication that the RO considered whether all development procedures were completed. In this regard, the Board observes that 38 C.F.R. § 21.1032, which describes VA's duty to assist claimants in obtaining evidence in education benefit claims, was only enacted in 2007 and amended in March 2009. As such, the Board finds that the claim must be remanded to ensure that all notification requirements and development procedures contained in 38 C.F.R. §§ 21.1031, 21.1032, 21.1033 are complied therewith. Accordingly, the case is REMANDED for the following actions: 1. The RO must issue to the appellant a corrective notice letter in accordance with 38 C.F.R. § 21.1031 (2013). The appellant's education folder should be reviewed and all notification requirements and development procedures contained in 38 C.F.R. §§ 21.1031, 21.1032, 21.1033 (2007) and (2013) should be completed. 2. The RO should request that the National Personnel Records Center (NPRC) or the Defense Finance and Accounting Service (DFAS) verify all periods of the appellant's military service, including service in the US Army Reserves, the Army National Guard, and the Active Guard Reserves, clearly delineating the periods of service. Reports of retirement points do not provide sufficient information to satisfy the requirements of this remand order. The AMC should also request from the Department of the Army an explanation as to the type of education benefits an individual may receive from the Department of Defense when an individual is a member of the Army Reserves, Active Guard Reserve, and Army National Guard. All information obtained should be included in the claims folder for review. 3. In the interest of avoiding further remand, the RO should ensure that the requested actions have been accomplished (to the extent possible) in compliance with this remand. If any development is incomplete, appropriate corrective action is to be implemented. 38 C.F.R. § 4.2 (2013). 4. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the issue in light of all evidence of record. If the benefit sought on appeal remains denied, the RO must furnish to the appellant and her representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. The case should then be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is required. 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). _________________________________________________ Eric S. Leboff 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).