Citation Nr: 1511517 Decision Date: 03/18/15 Archive Date: 03/27/15 DOCKET NO. 13-06 730 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to educational assistance in excess of the 50 percent rate under Chapter 33, Title 38, United States Code (Post 9/11 GI Bill). 2. Entitlement to educational assistance in excess of 9 months and 21 days under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from July 2005 to September 2006. This matter came to the Board of Veterans' Appeals (Board) on appeal from decisions of the Muskogee, Oklahoma RO in June 2012 and July 2012. In February 2014, during the course of the appeal, the Veteran had a hearing at the RO before the Veterans Law Judge whose signature appears at the end of this decision. The issue of entitlement to educational assistance in excess of 9 months and 21 days under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) is addressed in the REMAND portion of the decision below. FINDING OF FACT The Veteran was discharged from the service due to her service-connected bipolar disorder. CONCLUSION OF LAW The Veteran meets the criteria for Chapter 33 educational assistance benefits (Post-9/11 GI Bill) at the 100 percent rate. 38 U.S.C.A. §§ 3695(a)(4), 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 21.4020(4) (2014). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist Generally, the VA has a statutory duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). However, there are instances in which those duties have been found inapplicable to claims for benefits administered outside of 38 U.S.C.A. Chapter 51. See, e.g., Barger v. Principi, 16 Vet. App. 132, 138 (2002) (holding that the expanded duties are not applicable to cases involving the waiver of recovery of overpayment claims, pointing out that the statute at issue in such cases was not found in Chapter 51, Title 38, United States Code). In the present case, specific notice was not required because the applicable regulatory notification procedure for claims was contained in 38 C.F.R. § 21.1031 (2014). 38 C.F.R. § 21.9510 (2014) (applying the provisions of subpart B and 38 C.F.R. § 21.1031 to claims for educational assistance under Chapter 33). In addition, such notice is not required with respect to the issue of entitlement to Chapter 33 educational assistance benefits (Post-9/11 GI Bill) at a rate in excess of 50 percent. The Board is taking favorable action. Therefore, any error in notifying or assisting the Veteran in the development of that claim need not be further considered, as the decision poses no risk of prejudice to the Veteran. Analysis The Veteran asserts that she is entitled to educational assistance at the 100 percent rate under the Post 9/11 GI Bill, because she served at least 30 continuous days of creditable active duty service and was discharged due to a service-connected disability. After carefully considering the claim in light of the record and the applicable law, the Board will grant the claim. The applicable VA regulations provide that if a claimant serves the following periods of creditable active duty after September 10, 2001, the corresponding percentage of maximum Chapter 33 educational benefits will be paid: At least 36 months . . . . . . . . . . . . . . . . . . . . . . . . ..100 percent At least 30 months, but less than 36 months . . . . . . . 90 percent At least 24 months, but less than 30 months . .. . . .. . 80 percent At least 18 months, but less than 24 months . . . . . . . 70 percent At least 12 months, but less than 18 months . . . . . . . 60 percent At least 6 months, but less than 12 months . . . . . . .. 50 percent At least 60 days, but less than 6 months . . . . . . .. ... 40 percent At 80 percent or higher, this includes entry level and skill training. Otherwise, entry level and skill training are excluded. Where service requirements are met at both the 80 percent and 70 percent levels, a maximum 70 percent must be applied to amounts payable. Moreover, if a claimant served at least 30 continuous days of creditable active duty service and was discharged due to a service-connected disability, 100 percent of the maximum Chapter 33 benefits will be paid. 38 U.S.C.A. §§ 3311(b) , 3313(c); 38 C.F.R. § 21.9640(a) . The evidence shows that the Veteran had service of 285 days after September 10, 2001 and that she was discharged due to a personality disorder. This is service of more than 6 months and less than 12 months. On its face, that length of service is consistent with the payment of educational assistance at the current 50 percent rate under the Post-9/11 GI Bill. However, in a March 2010 decision, granting entitlement to service connection for bipolar disorder, the Board noted that the psychiatric symptoms exhibited by the Veteran during service constituted the initial manifestations of her bipolar disorder. In effect, the Board recognized that the same symptomatology which was attributed by the service department to the Veteran's personality disorder was that associated with her service-connected bipolar disorder. The evidence does not show that those symptoms were distinguished between the personality disorder and the bipolar disorder. In addition, the VA examinations in October 2007, April 2010, August 2011, and August 2014 do not even confirm the diagnosis of a personality disorder. The Board is required to grant resolution of the doubt to the Veteran. Because the record clearly shows she served on active duty for over 30 continuous days, and was discharged because of the service-connected disorder she meets the criteria education benefits under Chapter 33 (Post-9/11 GI Bill) at the 100 percent rate. Reasonable doubt is resolved in favor of the Veteran, and the case will be decided on that basis. 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102. To that extent, the appeal is allowed. ORDER Entitlement to educational assistance at the 100 percent rate under Chapter 33, Title 38, United States Code (Post 9/11 GI Bill) is granted. REMAND With respect to the issue of entitlement to educational assistance in excess of 9 months and 21 days under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill), the case is REMANDED to the Agency of Original Jurisdiction (AOJ) for the following actions: 1. The AOJ must obtain the Veteran's VA Education and Rehabilitation file and associate it with the Veteran's claims file. 2. Although the record shows that the Veteran has used 38 months and 9 days of Dependents Educational Assistance under Chapter 35 of Title 38 of the United States Code and 9 months and 21 days of educational benefits under Chapter 33 of Title 38 of the United States Code (Post 9/11 GI Bill), there is no evidence on file showing a detailed accounting of those awards. The AOJ must prepare an accounting regarding the Veteran's use of VA education benefits under Chapters 33 (Post-9/11 GI Bill) and Chapter 35 (Dependents Educational Assistance) of Title 38 of the United States Code). This must include, but is not limited to, the dates of each period of school enrollment; the amount of entitlement used during each period of enrollment; the type of benefit (Chapter 33 or Chapter 35) used; and the end date on which the RO determined that the Veteran had 9 months and 21 days of entitlement remaining. The AOJ must provide a copy of the accounting to the Veteran and her representative 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 for this. 3. When the actions in Parts 1 and 2 have been completed, the AOJ must undertake any other indicated development. Then, the AOJ must readjudicate the issue of entitlement is denied to educational assistance in excess of 9 months and 21 days under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill). The AOJ must consider the potential relevance of any amendments/revisions to the law/regulations, including, but not limited to, the amendment effective October 1, 2013, and codified at 38 U.S.C.A. § 3695(c) (2014), and any adjustments made to the Veteran's award as a result of this decision. If the benefit sought on appeal is not granted to the Veteran's satisfaction, she and her representative must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond. Thereafter, if in order, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The Veteran need take no action unless she is notified to do so. However, she is advised that she has the right to submit any additional evidence and/or argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369, 372-73 (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. 2007). ______________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs