Citation Nr: 1800143 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 16-04 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a benefits payment rate in excess of 60 percent for educational assistance under the Post-9/11-GI Bill program (Chapter 33), to include the question of whether the Veteran made an irrevocable election for education benefits under the Post-9/11-GI Bill program (Chapter 33) in lieu of benefits under the Montgomery GI Bill (MGIB) program (Chapter 30). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Costello, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1985 to December 1992 and from March 2008 to October 2008 with additional periods of reserve service. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2015 decision by the Department of Veterans Affairs (VA) Regional Office (RO) and Education Center that granted educational assistance benefits under the Post-9/11-GI Bill at the payment rate of 50 percent. A December 2015 decision increased the rate to 60 percent. In August 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this proceeding is associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As noted above, the Veteran has been awarded a 60 percent benefit level for educational assistance benefits under the provisions of Chapter 33, Title 38, United States Code (Post-9/11-GI Bill). He contends that he is entitled to education benefits at 100 percent, noting that while his character of discharge from service in October 2008 was honorable, he was actually discharged from service due to a service-connected disability. He further asserts that if he cannot get a 100 percent benefit under the Post-9/11-GI Bill, he would like to return to using the Montgomery GI Bill. The Veteran's most recent DD Form 214 reflects that he had active duty service from March 2008 to October 2008. It further lists his character of discharge as "Honorable" and notes the narrative reason for his separation was "Completion of Required Active Service." However, no service treatment records or personnel records have been associated with the claims file for this period of service. As the Veteran asserts he was medically discharged in October 2008 due to his hip disability and service connection has been awarded for a left hip disability, the RO must first undertake any additional development in order to clarify the facts and circumstances surrounding the Veteran's separation from service. Furthermore, the Veteran reports in his August 2017 Board hearing that he applied to have his character of discharge changed, but was denied by the Department of Defense and appealed the denial up to the Secretary of Defense; however, there is no such paperwork in the claims file. Therefore, the RO should attempt to associate any such documentation with the claims file, if such exists. Finally, in December 2015, the Department of Defense determined the Veteran had other Post-9/11-GI Bill qualified periods of service from September 27, 2001, to November 2, 2009. However, complete service treatment and personnel records for this time frame have not been associated with the claims file and should be obtained upon remand. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain and associate with the claims file the Veteran's complete service medical and personnel records from September 27, 2001, to November 2, 2009, to include his time in the Air Force Reserves and his active duty period from 2008. Any negative response should be in writing and associated with the claims file. 2. Also, attempt to associate any documentation of previous denials by the Department of Defense regarding the Veteran's request to change his character of discharge. 3. After completing the above, and any other development deemed necessary, readjudicate the claim based on the entirety of the evidence. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 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 2014). _________________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2017).