Citation Nr: 1626099 Decision Date: 06/29/16 Archive Date: 07/11/16 DOCKET NO. 14-26 861 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to basic eligibility for education assistance under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Hampton, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2010 to July 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2013 determination by the Education Center located at the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System. FINDINGS OF FACT 1. The Veteran served on active duty for a total of 60 days. 2. The Veteran was not discharged from a period of qualifying active duty service due to a service-connected disability. CONCLUSION OF LAW The criteria for eligibility for educational assistance under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) have not been met. 38 U.S.C.A. § 3311 (West 2014); 38 C.F.R. § 21.9520 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION As explained below, the pertinent facts in this case are not in dispute and the law is dispositive. Consequently, there is no additional evidence that could be obtained to substantiate the claim, and no further action is required to comply with VA's duties to notify and assist. See Manning v. Principi, 16 Vet. App. 534, 542 (2002); VAOPGCPREC 5-2004 (June 23, 2004). The Veteran seeks educational assistance under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill). At issue in this appeal is the Veteran's basic eligibility for Chapter 33 education benefits. A veteran may establish eligibility for educational assistance under the Post-9/11 GI Bill based on active duty service after September 10, 2001, if he or she serves a minimum of 90 aggregate days excluding entry level and skill training, and, after completion of such service, he or she: (1) continues on active duty; (2) is discharged from service with an honorable discharge; (3) is 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) is released from service characterized as honorable for further service in a reserve component; or (5) is discharged or released from service for - (i) a medical condition that preexisted such service and is not determined to be service-connected; (ii) hardship, as determined by the Secretary of the military department concerned; or (iii) 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. See 38 U.S.C.A. § 3311 (West 2014); 38 C.F.R. § 21.9520(a) (2015). A veteran is also eligible for benefits under the Post-9/11 GI Bill 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. See 38 C.F.R. § 21.9520(b) (2015). In this case, the Veteran's service treatment records (STRs) show that he suffered an in-service fall in May 2010. In a June 2011 rating decision, the Veteran was service connected for chronic neck strain with cervical spine foraminal narrowing and disc bulge; chronic right shoulder pain; headaches associated with chronic neck strain; right knee strain; bilateral nystagmus, radiculopathy of the right upper extremity associated with chronic neck strain; and residuals of an avulsion fracture of the right olecranon. Each of these conditions was service connected on the basis of having been caused by the Veteran's May 2010 fall. The Veteran was later granted a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities in an August 2012 rating decision. Following his May 2010 fall, the Veteran underwent a magnetic resonance imaging (MRI) test of his cervical spine and brain in June 2010. Although the brain MRI results were normal, the interpreting physician noted left anterior ethmoid sinus disease, and diagnosed the Veteran with mild sinus disease, left anterior ethmoid opacification, and a right maxillary sinus mucus retention cyst. In a July 21, 2010, memorandum, the Veteran's commanding officer informed him that he was being recommended for discharge due to erroneous enlistment. Specifically, the memorandum author stated that a medical narrative summary dated July 19, 2010, included a finding that the Veteran had a chronic sinus disease. As such, the author stated, the Veteran did not meet the minimum standards for enlistment, and should not have been allowed to join the Air Force. The author stated that he had not recommended a disability separation because the medical staff found the Veteran to be unqualified. The memorandum informed the Veteran that if the author's recommendation was approved, the Veteran's discharge would be described as an entry level separation. The Veteran's discharge for erroneous enlistment, with the type of discharge being entry level separation, was approved in a July 23, 2010, memorandum. In addition, the Board notes that a July 19, 2010, treatment note documented the Veteran's report that he was visiting to follow up from a neurology examination and to "do his [entry level separation] for sinus [disease]." The Veteran reported that his neck and knee symptoms had resolved, and that he was in law school and wished to separate from the military and re-enter as a Judge Advocate General (JAG). The Veteran's DD-214 shows that he was discharged on July 23, 2010. The type of separation listed was entry level separation, and the narrative reason given was "failed medical/physical procurement standards." Remarks indicated that the Veteran did not complete his first full term of service. A subsequent request and authorization for separation listed the type of separation as entry level separation and the character of service as "Uncharacterized." The Board first notes that uncharacterized entry level separations are considered to be under conditions other than dishonorable. See 38 C.F.R. § 3.12(k)(1) (2015). As such, the nature of the Veteran's discharge does not bar him from receipt of Chapter 33 education benefits. However, the Board notes that the Veteran served less than 90 days on active duty, and thus is not eligible for education benefits pursuant to 38 C.F.R. § 21.9520(a). In addition, the Board notes that while the Veteran served 30 days on active duty, eligibility for Chapter 33 education benefits pursuant to 38 C.F.R. § 21.9520(b) requires both 30 days of active duty service and discharge due to a service-connected disability. In this regard, the Board finds that the Veteran was not discharged from service due to any service-connected disability. Instead, the record is clear that the Veteran was given an uncharacterized entry level discharge due to a pre-existing sinus disease which was found by MRI testing following the Veteran's May 2010 in-service fall. The Board notes that in his July 2010 memorandum, the Veteran's commanding officer made clear that he was recommending the Veteran for discharge due to erroneous enlistment because of the finding of chronic sinus disease. The author specifically stated that a disability separation was not being recommended. Moreover, the aforementioned DD-214, in-service treatment notes, and request and authorization for separation form are consistent with this reason for the Veteran's discharge. The Board recognizes the Veteran's assertion that he was discharged from service due to his service-connected disabilities. However, there is no indication in the record that the Veteran was discharged due to the subsequently service-connected injuries and conditions caused by his May 2010 fall. Instead, the record is clear that the Veteran received an uncharacterized entry level discharge due to a pre-existing sinus condition which has not been service connected. For the reasons stated above, there is no legal authority to find the Veteran eligible for Chapter 33 education benefits. Where the law and not the evidence is dispositive of the issue before the Board, the claim must be denied because of the absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to basic eligibility for educational assistance under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) is denied. ____________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs