Citation Nr: 1807489 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 13-07 021 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether the denial of the Montgomery GI Bill benefits for training taken from September 17th, 2008 to September 18th, 2009 was proper. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran served on active duty from November 1990 to January 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2012 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Muskogee RO denied his claim, indicating that it could not pay educational benefits for periods of education prior to one year from the date of receipt of the enrollment certification. In November 2017, the Veteran testified before the undersigned Veterans Law Judge during a videoconference hearing; a transcript of the hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran testified that the U.S. Customs and Border Patrol Agency submitted his application for educational benefits during his training from September 17th, 2008 to September 18th, 2009. In support, he submitted a copy of the application he filled out in 2009 (this is not date stamped). He also submitted two letters from Border Patrol Agents indicating that an application was submitted in a timely manner. The claims file is devoid of any applications filed before October 31, 2011. The claims file contains an application for benefits on October 31, 2011, a Certificate of Eligibility issued in February 2012, and an enrollment certification and training agreement from the U.S. Border Patrol from September 17, 2008 to September 18, 2009. Applicable regulations governing the payment of Chapter 30 educational benefits prohibit an award for any period earlier than one year prior to the date of the receipt of the application or enrollment certification, whichever is later. Specifically, the date on which an award of educational assistance benefits commences is the latest of the following dates: (1) the date the educational institution certifies the enrollment; (2) the date one year before the VA receives the veteran's application or enrollment certification, whichever is later; (3) the effective date of the approval of the course, or one year before the date VA receives the approval notice, whichever is later. 38 C.F.R. § 21.7131 (a) (2017). "Date of claim" is defined as "the date on which a valid claim or application for educational assistance is considered to have been filed with VA, for purposes of determining the commencing date of an award of that educational assistance." (Id.) (Emphasis added). On Remand, the RO should request a date stamped copy of the application that was filed or any letter from the VA during that time period indicating receipt of his application. Moreover, the Veteran submitted two letters from the Border Patrol Agency without a waiver of review. There, the Board must remand this matter so that the RO in Muskogee, Oklahoma can consider the report in the first instance. See Hickson v. Shinseki, 23 Vet. App. 394 (2010). Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and request that he submit a date stamped copy of his timely application and/or any letters from the VA regarding his application during that time period. 2. Contact the US Customs and Border Protection located at 207 West Del Mar Blvd Laredo, Tx 78041 and request a copy of the application with proof of receipt by the VA (i.e., a date stamped copy or letters from the VA). 2. Thereafter, review the record, arrange for any additional development suggested, and readjudicate the claim on appeal. If denied, issue an appropriate SSOC and afford the Veteran and his representative the opportunity to respond before the case is returned to the Board. The Veteran 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). _________________________________________________ Lesley A. Rein 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) (2016).