Citation Nr: 18146858 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 17-37 395 DATE: November 1, 2018 REMANDED The matter of whether a debt in the amount of $52,120.61 for payment of educational assistance benefits under the Transfer of Entitlement provisions of Chapter 33, Title 38, United States Code (known as the Post-9/11 GI Bill) was properly created is remanded. REASONS FOR REMAND Information of record indicates that the Veteran served on active duty from November 1984 to February 1994 and from March 2006 to January 2017. The appellant in this case is the Veteran’s daughter. This appeal to the Board of Veterans’ Appeals (Board) arose from a February 2017 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. By that decision, the RO notified the appellant that, due to the Veteran’s failure to meet his obligated service end date of August 7, 2018, she was not eligible for Post-9/11 GI Bill benefits under the Transfer of Entitlement provisions of Chapter 33, which action resulted in an overpayment of VA educational assistance benefits. The appellant disagreed with that determination in May 2017. A statement of the case (SOC) addressing whether the debt was validly created was issued in June 2017, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) that same month. Also, this appeal has been advanced on the Board's docket. See 38 U.S.C. § 7107 (a)(2) and 38 C.F.R. § 20.900(c). Notably, in her VA Form 9, the appellant requested waiver of recovery of the overpayment of payment of Chapter 33 educational assistance benefits. No action has been taken on the appellant’s request for waiver since that time. The Board thus does not have jurisdiction over the waiver request and it is referred to the appropriate agency of original jurisdiction (AOJ) for action. 38 C.F.R. § 19.9(b). Unfortunately, the Board find that further action on the matter of whether the debt in the amount of $52,120.61 for payment of Chapter 33 educational assistance benefits was validly created is warranted, even though such will, regrettably, further delay an appellate decision on this matter. In the instant case, the record shows that in August 2014, the Veteran transferred 36 months of his Post-9/11 GI Bill educational assistance benefits to his daughter, who is the appellant in this case. Via letter dated in September 2014, the RO the Veteran that it had transferred entitlement to his dependent based on his request per the Transferability Education Benefits (TEB) website. Although in that letter, the RO noted that because the Veteran was unable to specify which education benefit he wanted to relinquish, VA had relinquished his benefits under Chapter 30, Title 38, United States Code (known as the Montgomery GI Bill Active Duty (MGIB-AD)), all other relevant records indicate that it was the Veteran’s Chapter 33 benefits that were in fact transferred, to include information retrieved from VA/DoD Identity Repository (VADIR). That same month, the RO received the appellant’s application for use of transferred educational assistance benefits, along with certification from University of North Carolina at Charlotte that the appellant was enrolled in an undergraduate degree program at that institution. In September 2014, the RO issue to the appellant a “Certificate of Eligibility” notifying her that she was entitled to benefits for an approved program of education or training under the Post-9/11 GI Bill and that she had 36 months of full-time benefits, payable at the 100 percent benefit rate. The record then contains a VADIR information report wherein it is noted that the Veteran was discharged from service on January 31, 2017, and the transfer of entitlement of Chapter 33 educational assistance benefits had been revoked. The is also a type-written notation of record indicating that because the Veteran had retired from the Army on January 31, 2017, prior to service obligation date of August 7, 2018, his dependents were not eligible to retain educational assistance benefits under the transfer of entitlement provisions of Chapter 33. In February 2017, the appellant was informed of the creation of the debt and in March 2017, the St. Paul, Minnesota, RO’s Debt Management Center (DMC) sent to the appellant three debt notices wherein it was reported that she had been overpaid $2,583.33 for books, supplies, work study, licensing, certification, and/or tutorial payment or refund; $18,111.89 for tuition and fees or a yellow ribbon payment; and $31,425.39 for housing allowance, Chapter 33 kicker, or supplemental payment. Relevant to the issue on appeal, the law provides that that the Secretary of Defense or, in this case, the Secretary of the Army, may approve a member of the Armed Forces who is entitled to basic educational assistance under Chapter 33, under certain circumstances, to elect to transfer to one or more dependents the unused portion of entitlement to such assistance. 38 U.S.C. § 3319(a). To be eligible to transfer educational assistance benefits, a transferor must have served six years on active duty or in the Selected Reserve at the time of his approval by the Secretary of the Army and must have entered into an agreement to serve at least four more years as a member of the Armed Forces. 38 U.S.C. § 3319(b). The law further provides that if an individual transferring entitlement under 38 U.S.C. § 3319 fails to complete the service agreed to in accordance with the terms of the agreement of the individual under individual under 38 U.S.C. § 3319(b)(1), the amount of any transferred entitlement under this section that is used by a dependent of the individual as of the date of such failure shall be treated as an overpayment of educational assistance. 38 U.S.C. § 3319(i)(2)(A). Exceptions however exist and subparagraph (A) will not apply in the case of an individual who fails to complete service agreed to by the individual (1) by reason of the death of the individual or (2) for a reason referred to in 38 U.S.C. § 3311(c)(4). 38 U.S.C. § 3319(i)(2)(B). Thus, in accordance with 38 U.S.C. § 3311(c)(4), if the individual transferring entitlement fails to complete the service agreed to due to early discharge or release from active duty for (1) a medical condition which preexisted the applicable period of service of the individual and which the Secretary determines is not service-connected; (2) hardship; or a physical or mental condition that was not characterized as a disability and did not result from the individual’s own willful misconduct but did interfere with the individual’s performance of duty, as determined by the Secretary concerned in accordance with regulations prescribed by the Secretary of Defense, an overpayment of education assistance benefits will not be assessed. 38 U.S.C. § 3311(c)(4). In the instant case, the Board has before it no records related to the circumstances of the Veteran’s discharge from service. In this regard, the Board notes that the appellant has asserted that the Veteran was separated from service under the Qualitative Management Program. She also indicted that circumstances beyond the Veteran’s control prevented him from completing his service obligation and there is a suggestion that the Veteran retired early in order to care for his wife, who was medically retired from the military. Overall, the Board finds that before it can reach the question of whether the education debt at issue in this case was validly created, the matter must be remanded to obtain all relevant records related to the Veteran’s discharge from service, so as to determine whether the circumstances of his separation from service prior to his service obligation date qualify for an exception to the general rule that failure to complete the service agreed to in accordance with the terms of the agreement of the individual under individual under 38 U.S.C. § 3319(b)(1) will result in an overpayment of educational assistance benefits used by a transferee. Also, while this matter is on remand, to ensure that the record is complete, the AOJ should also give the appellant another opportunity to provide additional information and/or evidence pertinent to the appeal, explaining that she has a full one-year period to respond. See 38 U.S.C. § 5103(b)(1). But see 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claim on appeal (which, ideally, will be adjudicated along with the waiver request, referenced above). The matter is hereby REMANDED for the following action: 1. Send to Veteran a letter requesting that he provide any additional information and/or evidence pertinent to the claim on appeal. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 2. Obtain and associate with the claims file the Veteran’s service personnel records, to include all records related to his discharge from service. 3. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim on appeal—ideally, along with the waiver request referenced above—considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. In addressing whether the education debt was validly created, the consider and address whether the circumstances of the Veteran’s separation from service prior to his service obligation date qualify for an exception to the general rule that failure to complete the service agreed to in accordance with the terms of the agreement of the individual under individual under 38 U.S.C. § 3319(b)(1) will result in an overpayment of educational assistance benefits used by a transferee. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Neilson, Counsel