Citation Nr: 18152127 Decision Date: 11/21/18 Archive Date: 11/20/18 DOCKET NO. 15-11 947 DATE: November 21, 2018 ORDER Entitlement to an educational assistance benefit level of 100 percent under Chapter 33, Title 38, Unites States Code (Post-9/11 GI Bill) is granted. FINDINGS OF FACT 1. The Veteran served on active duty for over 30 continuous days. 2. The Veteran was discharged from service due to a service-connected disability. CONCLUSION OF LAW The criteria for education benefits at the 100 percent level under Chapter 33 (Post-9/11 GI Bill) are met. 38 U.S.C. §§ 3301, 3311, 3313, 5107 (2012); 38 C.F.R. §§ 3.102, 21.9505, 21.9640 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had pertinent active duty service from October 2001 to August 2002, November 2006 to February 2007 and from April 2009 to October 2009. At the outset, the Board notes that the Veteran’s basic eligibility for Chapter 33 (Post-9/11 GI Bill) education benefits is not in dispute. Rather, the dispute in this case is the percentage at which such benefits should be calculated. The amount of educational assistance payable under 38 U.S.C. Chapter 33 is calculated in accordance with a table measuring the aggregate length of creditable active duty service after September 10, 2001. 38 U.S.C. §§ 3311 (b)(3), 3313; 38 C.F.R. § 21.9640. The percentage of maximum amounts payable is 40 percent with at least 90 days, but less than 6 months, of creditable active duty; 50 percent with at least 6 months, but less than 12 months, of creditable active duty service; 60 percent with at least 12 months, but less than 18 months, of creditable active duty service; 70 percent with at least 18 months, but less than 24 months, of creditable active duty service; 80 percent with at least 24 months, but less than 30 months, of creditable active duty service; 90 percent with at least 30 months, but less than 36 months, of creditable active duty service; and 100 percent with at least 36 months of creditable active duty service or with at least 30 continuous days of creditable active duty service and a discharge due to a service-connected disability. 38 C.F.R. § 21.9640 (a). For the 40 percent, 50 percent, 60 percent, and 70 percent creditable active duty service calculations, entry level and skill training is excluded. Id. at Note 1. For the 80 percent, 90 percent, and 100 percent creditable active duty service calculations, entry level and skill training is included. Id. at Note 2. If the creditable active duty service criteria are met for both the 70 percent and 80 percent criteria, the maximum percentage of 70 must be applied. Id. at Note 3. In this case, it was determined that the Veteran’s aggregate length of creditable active duty service after September 10, 2001 for educational assistance benefits under Post-9/11 GI Bill purposes was 599 days; i.e., a period of at least 18 months, but less than 24 months, of creditable active duty service. There is no evidence to refute the calculation of the Veteran’s aggregate length of this credible service. Moreover, there is a presumption of regularity which holds that government officials are presumed to have properly discharged their official duties. Unless rebutted by clear evidence to the contrary, VA is entitled to the benefit of this presumption. Ashley v. Derwinski, 2 Vet. App. 307 (1992). Applying this presumption to the instant case, the record indicates that the calculation of the Veteran’s credible service for Post-9/11 GI Bill education benefits was correct. The 100 percent rate is assigned when there is at least 30 continuous days of creditable active duty service and a discharge due to a service-connected disability. Here, the Veteran asserts he was discharged due to injuries sustained during active duty—specifically, an acquired mental health disability caused by his service in a combat zone. A January 2014 report of the U.S. Air Force Physical Evaluation Board shows that the Veteran’s acquired psychiatric disability (therein described as posttraumatic stress disorder (PTSD), anxiety and adjustment disorder) rendered him unfit for continued duty. The Veteran’s NGB Form 22 shows he was separated due to physical disability. In contrast, the multiple DD Form 214s related to his pertinent active service each state that he was discharged due to completion of required active service. It was because of this characterization that his claim for a 100 percent rating was denied. Service connection has been in effect since November 2009 for an acquired psychiatric disability characterized as PTSD with unspecified depressive disorder and alcohol use disorder. Although the Veteran was medically retired from the Air Force National Guard in 2014, it is clear from the record that his acquired psychiatric disability preceded his discharge from service and has been recognized by VA as being due to his service. The Board also notes the law mandates when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107 (b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). In view of the foregoing, the Board finds that the Veteran was discharged from service due to a service-connected disability. As the record clearly shows he served on active duty for over 30 continuous days, it follows that he is entitled to education benefits under the Post-9/11 GI Bill at the 100 percent rate. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeremy J. Olsen, Counsel