Citation Nr: 19140010 Decision Date: 05/23/19 Archive Date: 05/23/19 DOCKET NO. 18-12 969 DATE: May 23, 2019 REMANDED The claim of entitlement to additional Department of Veterans Affairs (VA) educational assistance benefits under Chapter 33, Title 38, United States Code (known as the Post-9/11 GI Bill) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 2004 to June 2010. This appeal to the Board of Veterans’ Appeals (Board) arose from a January 2018 determination that the Veteran had exhausted his entitlement to VA educational assistance benefits. The Veteran disagreed with that determination, and this appeal ensued. A review of the record shows that the Veteran was issued a “Certificate of Eligibility” in June 2010 certifying that he was entitled to benefits for an approved program of education or training under the Post-9/11 GI Bill. Specifically, it was indicated that the Veteran was entitled to 36 months and 0 days of full-time benefits, which benefits were payable at the 100 percent rate. Accordingly, the Veteran’s basic eligibility for Chapter 33 education assistance benefits is not in dispute. Rather, the dispute in this case is over the determination the Veteran’s benefits have been exhausted. In this regard, the Board notes that VA law provides a limit on training under two or more programs. Specifically, the aggregate period for which any person may receive assistance under two or more of the following laws may not exceed 48 months (or the part-time equivalent): (1) Part VII or VIII, Veterans Regulations numbered 1(a), as amended; (2) Title II of the Veterans’ Readjustment Assistance Act of 1952; (3) The War Orphans’ Educational Assistance Act of 1956; (4) 38 U.S.C. chapters 30, 32, 33, 34, 35, and 36; (5) 10 U.S.C. chapters 106a, 1606, and 1607; (6) Section 903 of the Department of Defense Authorization Act, 1981; (7) The Hostage Relief Act of 1980; and (8) The Omnibus Diplomatic Security and Antiterrorism Act of 1986. 38 U.S.C. § 3695(a); 38 C.F.R. § 21.4020(a). Here, the agency or original jurisdiction (AOJ) found that the Veteran had previously used 14 months and 8 days of entitlement under the provisions of Chapter 31, Title 38, United States Code (Vocational Rehabilitation and Employment (VR&E)). The record then contains various award letters showing that the Veteran had been awarded Chapter 33 educational assistance benefits, which letters also contain information regarding his remaining entitlement. The latest of these letters is dated in January 2013, at which time it was indicated that the Veteran 16 months and 25 day of full-time benefits remaining. In November 2017, the AOJ issued another “Certificate of Eligibility” wherein it was indicated that the Veteran then had 2 months and 2 days of full-time benefits remaining. In January 2018, however, it was determined that Veteran had exhausted his entitlement to VA educational assistance benefits. Notably, the January 2018 determination is not of record. A statement of the case (SOC) is however of record. In the SOC, the AOJ states that the Veteran had used 14 months and 8 days of entitlement under Chapter 31 and that he had been awarded “33 months and 22 days of entitlement to the Post-9/11 GI Bill.” It was further indicated that as of December 17, 2014, the Veteran had exhausted his entitlement, as he had used 48 months of VA educational assistance benefits. In disagreeing with the AOJ’s determination that he had used 48 months of entitlement, the Veteran submitted a print out of this “Post-9/11 GI Bill Statement of Benefits,” showing that as of November 8, 2017, he had 2 months and 2 days of entitlement remaining. Notably, that printout indicated his total months received to be 35 months and 25 days, which conflicts with his June 2010 “Certificate of Eligibility” certifying that he was eligible to receive 36 months of entitlement and the SOC indicating that he had only been award 33 months and 22 days of entitlement. Overall, given the conflicting information of record concerning the amount of full-time benefits awarded and the lack of documentation dates after January 2013 concerning entitlement used, the Board finds is necessary to remand the matter for the AOJ to provide a full accounting of the educational assistance benefits used by the Veteran. This is so because as the record currently stands, the Board cannot determine how the AOJ arrived at the conclusion that the Veteran exhausted his entitlement to VA educational assistance benefits. While this matter is on remand, to ensure that the record is complete, the AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the appeal, explaining that he 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). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159. 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 action deemed warranted prior to adjudicating the matter on appeal.   The matter is hereby REMANDED for the following action: 1. Send to the Veteran and his representative a letter requesting that the Veteran provide any additional information and/or evidence pertinent to the 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. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. Associate with the claims files the January 2018 determination that the Veteran had exhausted his entitlement to VA educational assistance benefits. 4. Then, create a clear accounting as to the Veteran’s use of VA educational assistance benefits, to include how the total amounts of Chapter 31 and Chapter 33 benefits was arrived at. The AOJ must also address the conflicting evidence regarding the Veteran’s award of Chapter 33 benefits, to include identifying the precise number of months and days to which the Veteran was entitled. If it is determined that the Veteran was not entitled to 36 months of full-time benefits, the AOJ must provide an explanation for its determination, to include addressing the July 2010 award letter. 5. Associate this accounting with the electronic claims file as well as provide a copy of this accounting to the appellant. 6. 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). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim on appeal considering in light of all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication of the claims) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Neilson, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.