Citation Nr: 1647353 Decision Date: 12/20/16 Archive Date: 12/30/16 DOCKET NO. 14-41 195A ) DATE ) ) On appeal from the Department of Veterans Affairs Atlanta Regional Office in Decatur, Georgia THE ISSUE Entitlement to a higher level of education benefits than 40 percent under Chapter 33, Title 38, the Post-9/11 GI Bill Educational Assistance Program. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran and S.L. ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from March 2009 to April 2012, including service in Afghanistan from April to August 2009. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2014 decision of the Department of Veterans Affairs (VA) Atlanta Regional Office (RO) in Decatur, Georgia. In August 2015 the Veteran was afforded a hearing before the undersigned Veterans Law Judge (VLJ) at the Board's office in Washington, D.C. A transcript of the proceeding is of record. The record reflects that the Veteran filed a notice of disagreement with a May 2014 rating decision rating his service-connected migraines and psychiatric disability and denying a total rating based on unemployability. Although the record reflects that the RO has responded to the notice of disagreement, it does not reflect that the RO has issued a Statement of the Case addressing the issues. The RO is reminded that it should do so as soon as possible, unless the Veteran withdraws the notice of disagreement. FINDING OF FACT The Veteran served on active duty for 30 continuous days and was discharged due to service-connected disability. CONCLUSION OF LAW The criteria for the full rate of Chapter 33 benefits have been met. 38 U.S.C.A. § 3311 (West 2014); 38 C.F.R. §§ 21.9505, 21.9520, 21.9640 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Chapter 33 of Title 38, U.S. Code sets forth educational assistance for members of the Armed Forces after separation from military service, where there has been completed active duty service after September 10, 2001. See 38 U.S.C.A. §§ 3301-3324 (West 2014). For that purpose active duty is defined 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. 688, 12301(a), 12301(d), 12301(g), 12302 or 12304." Active duty status does not include the following: (1) full-time National Guard Duty performed under 32 U.S.C. orders; (2) any period during which the individual (i) was assigned full-time by the Armed Forces to a civilian institution to pursue a program of education that was substantially the same as programs of education offered to civilians; (ii) served as a cadet or midshipmen at one of the service academies; or (iii) served under the provisions of 10 U.S.C. 12103(d) pursuant to an enlistment in the Army National Guard, Air National Guard, Army Reserve, Naval Reserve, Air Force Reserve, Marine Corps Reserve, or Coast Guard Reserve; (3) a period of service (i) required by an officer pursuant to an agreement under 10 U.S.C. 2107 (b); (ii) required by an officer pursuant to an agreement under 10 U.S.C. 4348, 6959, or 9348; (iii) that was terminated because the individual is considered a minor by the Armed Forces, was erroneously enlisted, or received a defective enlistment agreement; or (iv) counted for purposes of repayment of an education loan under 10 U.S.C. chapter 109; or (4) a period of Selected Reserve service used to establish eligibility under U.S.C. chapter 30 or 10 U.S.C. chapter 1606 or 1607. See 38 C.F.R. § 21.9505 (2016). Pursuant to Chapter 33, the rates of payment of educational assistance are determined based on the aggregate length of creditable active duty service at September 10, 2001. Where there has been at least 90 days, but less than 6 months qualifying active duty service, education benefits are payable at the 40 percent rate. For at least 6 months, but less than 12 months active duty the 50 percent rate applies. For at least 12 months, but less than 18 months active duty the 60 percent rate applies. For at least 18 months, but less than 24 months active duty the 70 percent rate applies. For at least 24 months, but less than 30 months active duty the 80 percent rate applies. For at least 30 months, but less than 36 months the 90 percent rate applies. To warrant receipt of the maximum 100 percent rate of this benefit, there must have been either: (1) At least 36 months active duty; or (2) At least 30 continuous days and a service discharge due to service-connected disability. 38 C.F.R. § 21.9640(a) (2016). The Board finds that the Veteran is entitled to the highest Chapter 33 benefit level of 100 percent. The Veteran served in Afghanistan for 5 months in year 2009, after having been ordered to active duty status in March 2009 from an Army National Guard unit. He remained in Afghanistan up until August 2009 when injured during combat and having sustained a through and through gunshot wound of the right leg. The Veteran indicates he was in the process of coming to the aid of another service member when the injury occurred. Months of recovery and convalescence ensued, and long-term he had residual neuropathy of the tibial and peroneal (fibular) nerves, branches of the sciatic nerve. For this reason, for the time period since August 2009 whereas the Veteran remained on active duty status, this was for the convenience of the government under 10 U.S.C. 12301, and medical hold per 10 U.S.C. 12322. The Veteran was later adjudicated service-connected for a neuropathic leg disorder receiving 80 percent from May 1, 2012. Taking into account the Veteran being on medical hold for a substantial period of time that the Regional Office recognized him as having qualifying active duty, but calculated the aforesaid at 163 days of qualifying service recognized from March to August 2009, and not further. The medical hold time was not counted because technically not cognizable active duty service for purposes of Chapter 33 under applicable regulations (per Statement of the Case (SOC), sent by Regional Office, November 2014). The rate of benefits was set at 40 percent. See 38 C.F.R. § 21.9640(a). Having considered the extent to which further benefit is permitted, initially, no definitive view on the validity of "medical hold" status towards the 36 months active duty is required here, and, arguably every such case is a different matter. Rather, the Board finds that recovery is still warranted under the additional provision within governing regulations to assign 100 percent benefit for 30 days continuous service and discharge because of service-connected disability. The 30 days continuous service are clearly already established. The Veteran's service discharge, moreover, was essentially the product of service-connected disability. He received an 80 percent service-connected award for right leg sciatic nerve disorder, with drop foot and muscle injuries (the award of which was already contemplated and set out in a 2011 preliminary Regional Office rating decision even before official separation). The October 2011 in-service Physical Evaluation Board (PEB) further recommended medical discharge in view of leg injury and upon medical advisement. That was later overturned by second PEB November 2011 declaring the Veteran fit for duty, but only at the Veteran's strong request at the time. He ultimately completed required active service in April 2012 (per Form DD-214). The evidence demonstrates that the Veteran's active duty service concluded as a consequence of service-connected disability. He completed his full term of active duty in name, but only because of refusing medical discharge for what became service-connected disability. Advisement of several medical professionals back in October 2011 was that the Veteran could not continue productive active duty service. Since the incurrence of the in-service injury, the course of his military assignments and for the most part the terms of his separation were consistent with service-connected disability and recovery from the same. Accordingly, the Veteran is found to have been discharged as a result of service-connected disability. (CONTINUED ON NEXT PAGE) ORDER Chapter 33 educational assistance at the 100 percent level is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs