Citation Nr: 20022500 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 19-06 205A DATE: April 1, 2020 ORDER Entitlement to a benefits payment rate of 100 percent for educational assistance under Chapter 33 of Title 38 of the United States Code (Post-9/11 GI Bill) is granted. FINDING OF FACT The Veteran was discharged from a qualifying period of active service due to service-connected disabilities. CONCLUSION OF LAW The criteria for education benefits under Chapter 33 (Post-9/11 GI Bill) at the 100 percent rate have been met. 38 U.S.C. §§ 3311, 3313; 38 C.F.R. §§ 21.9505, 21.9640. REASONS AND BASES FOR FINDING AND CONCLUSION The record reflects the Veteran was a member of the United States Army National Guard which included periods of active duty from May 1983 to September 1983, from January 1992 to May 1992 and from August 2004 to February 2006. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a determination by the education center located at the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, that the Veteran was entitled to Chapter 33 (Post-9/11 GI Bill) education benefits at the 60 percent level. 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 rate of the benefits to which he is entitled. The amount of educational assistance payable under Chapter 33, Title 38, United States Code, 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 service (i.e., 90-179 days); 50 percent with at least 6 months, but less than 12 months, of creditable active duty service (i.e., 180-364 days); 60 percent with at least 12 months, but less than 18 months, of creditable active duty service (i.e., 365-544 days); 70 percent with at least 18 months, but less than 24 months, of creditable active duty service (i.e., 545-729 days); 80 percent with at least 24 months, but less than 30 months, of creditable active duty service (i.e., 730-909 days); 90 percent with at least 30 months, but less than 36 months, of creditable active duty service (i.e., 910-1094 days); and 100 percent with at least 36 months of creditable active duty service (i.e., 1095 days or more), or with at least 30 continuous days of creditable active duty service and a discharge from service due to a service-connected disability. 38 C.F.R. § 21.9640(a). Here, the record reflects the Veteran’s only qualifying period of active service for Chapter 33 purposes was the August 2004 to February 2006 period of active duty. As such, he had at least 12 months but less than 18 months of qualifying active service for Chapter 33 (Post-9/11 GI Bill) purposes. This is consistent with the Veteran’s currently assigned 60 percent level of Chapter 33 benefits. The Veteran does not contest the length of his qualifying active duty service. Instead he maintains that he is entitled to Chapter 33 benefits at the 100 percent level because he served more than 30 days of qualifying active duty and because he was discharged due to service-connected disability. On his August 2018 Form 9, the Veteran reported that he was discharged from the Tennessee Army National Guard due to service-connected disability incurred during his (active duty) deployment. He complained that The Department of the Army did not provide him a medical board so that he could be discharged for his service-connected disabilities. He reported that once he returned back to his Tennessee National Guard unit, they initiated a medical evaluation board and determined that he was unfit for duty because of the disabilities. He noted that he was then discharged from the Tennessee Army National Guard due to the disabilities he incurred while on active duty. He pointed out that he has been granted service connection for the disabilities that resulted in his being discharged. The Veteran submitted documents showing that he was discharged for medical conditions and asserted that it was not his fault that he was not sent before a medical evaluation board before his discharge from his period of active duty. In support of his assertions the Veteran submitted an October 2005 active duty document from The Department of the Army Human Resources Command. It states that the Veteran was to report to Medical Retention Processing (MRP). In April 2005 the Veteran was put on physical profile for muscle strain and hip pain. In January 2006, just prior to discharge from active duty, the Veteran was put on physical profile due to bilateral knee pain and due to left ankle pain. The Veteran’s service treatment records (STR) contain a January 2006 Report of Medical Assessment (RMA). The Veteran was noted to have hypertension, hyperlipidemia, insomnia, sleep apnea, knee and ankle pain, depression, and left neck pain. On February 14, 2006, less than two weeks after the Veteran’s discharge from active duty, The Department of the Army issued a memorandum stating that the Veteran’s injuries sustained on September 9, 2005 were in the line of duty. The document does not state the specific injuries that were in the line of duty. The Veteran has been granted service connection for a number of disabilities effective from February 3, 2006, the day after the Veteran was discharged from active duty. These include sleep apnea, lumbar spine strain/arthritis, cervical spine arthritis, bilateral knee arthritis, bilateral hip arthritis, left ankle fracture residuals, hypertension, and bilateral plantar fasciitis. His combined service-connected disability rating effective the day after discharge from active service was 70 percent. The Board recognizes that the Veteran’s DD-214 does not indicate that the Veteran was released from active duty due to disability. It states that the Veteran was released from active duty on February 2, 2006 due to completion of required active service. However, the Board finds that when all the evidence is considered together, that the Veteran was discharged from active duty due to physical disability. The Veteran’s active duty STR show treatment for the disabilities for which resulted in his receiving a 70 percent combined service-connected rating immediately upon discharge from active duty. Furthermore, the active duty records show that during the last few months of his active duty service the Veteran was on physical profiles and that a physical evaluation board was being considered. To the Veteran’s detriment, he was discharged from active duty without such an evaluation. As soon as he returned to the Tennessee Army National Guard he was evaluated for physical disability and discharged from the National Guard due to the disabilities. Finding all doubt in favor of the Veteran, the Board finds that the exception for Chapter 33 benefits regarding a veteran with 30 days of active service and a discharge due to service-connected disability is applicable to him. Accordingly, the Veteran is entitled to Chapter 33 benefits at the 100 percent rate. 38 C.F.R. § 21.9640(a). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Jones, 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.