Citation Nr: 1804918 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 13-31 067A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina. THE ISSUE Entitlement to greater than two months and 22 days of full-time 38 U.S.C. Chapter 33 educational benefits under the Post-9/11 GI Bill. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph Montanye, Associate Counsel INTRODUCTION The Veteran had active military service from August 1995 to June 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal of a 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The issue was remanded by the Board in June 2014 to provide the appellant with a hearing on the matter. In October 2014, the Veteran testified at a travel board hearing before the undersigned. A transcript of that hearing has been associated with the Veteran's file. The Board has reviewed the Veteran's paper education file and also evidence available in his VA electronic files. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran asserts that: "I was not aware of the penalty for" electing to receive VA Post-9/11 GI Bill (Chapter 33) educational assistance benefits in lieu of VA Montgomery GI Bill (Chapter 30) educational assistance benefits. The Veteran states that he was told "to sign up for the Post 9/11 benefit and my chapter 30 would convert when it expired after the 2 months and 22 days." He raises the question "why would I ever forfeit any benefits to only receive (two) months and 22 days in total;" and argues that he "never would have selected to change the benefit from Chapter 30 to receive Chapter 33 had I been properly informed on the process." He requests that his VA educational assistance benefits be reverted to Chapter 30 to exhaust the remaining two months and he will apply for the Chapter 33 benefit following the exhaustion of his Chapter 30 benefits. An undated and unsigned Application for VA Education Benefits states that the Veteran was applying for "Chapter 33 in lieu of Chapter 30 - effective 9/12/2012." A July 2013 statement of the case issued to the Veteran indicates that VA received claimant's application for VA education benefits requesting Post-9/11 GI Bill in lieu of Chapter 30 (Montgomery GI Bill) effective August 29, 2012. The statement of the case states that the application informed claimant if eligible for Chapter 30 benefits, he must make an irrevocable election from Chapter 30 to Chapter 33, and that the application advised that entitlement will be limited to the number of months remaining under Chapter 30. It is noted in the Veteran's statements that he may have faxed his application to the VA and that he did not understand the consequences of his request. The copy of the Veteran's purported Application for VA Education Benefits in the record is neither certified, signed, or dated. VA should obtain all relevant VA records which could potentially be helpful in resolving the Veteran's claim. See Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). Therefore, appropriate action should be undertaken to associate a paper copy of the Veteran's fully completed/executed Application for VA Education Benefits conveying his election to receive Chapter 33 educational assistance benefits in lieu of Chapter 30 educational assistance benefits with the record. Accordingly, the case is REMANDED for the following action: 1. Associate with the record a paper copy of the Veteran's fully completed/executed Application for VA Education Benefits conveying his election to receive VA Post-9/11 GI Bill (Chapter 33) educational assistance benefits in lieu of VA Montgomery GI Bill (Chapter 30) educational assistance benefits and/or other relevant documentation reflecting such an election. Both a paper hard copy and a digital copy should be searched for. The Veteran has stated that he faxed his application when applying, but the application of record is computer generated and unsigned. If the Veteran digitally signed an application the evidence documenting the appellant's digital signature and submission should be clearly identified. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Then readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case which addresses all relevant actions taken on the Veteran's claim for benefits, to include a summary of the evidence considered, since the issuance of the statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. 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. §§ 5109B, 7112 (2012). _________________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).