Citation Nr: 21064926 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 17-41 065 DATE: October 22, 2021 ORDER A 100 percent rate for educational assistance benefits under Chapter 33 of Title 38, U.S.C., (also known as the 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, 5107; 38 C.F.R. §§ 3.102, 21.9505, 21.9520, 21.9640. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the Army National Guard from June 2008 to December 2015. His service included an initial active duty for training period from January 2009 to May 2009, and active duty from July 2010 to August 2011. This matter comes to the Board of Veterans Appeals (Board) on appeal from a May 2016 determination of the Department of Veterans Affairs (VA) Regional Office. In May 2021, the Veteran testified at a Board virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Legal Criteria The Post 9/11 GI Bill provides for VA educational assistance for members of the Armed Forces based on creditable active service after September 10, 2001. For members of the regular components of the Armed Forces, qualifying active duty service under the Post-9/11 GI Bill is full-time duty other than active duty for training. 38 U.S.C. § 3301(1)(A). For members of the reserve components of the Armed Forces, qualifying active duty includes service on active duty under a call or order to active duty under 10 U.S.C. §§ 688, 12301(a), 12301(d), 12301(g), 12301(h), 12302, 12304, 12304a, or 12340b or 14 U.S.C. § 712. See 38 U.S.C. § 3301(1)(B). (Notably, the relevant regulation, 38 C.F.R. § 21.9505, has not yet been amended to incorporate the expanded definition of "active duty" as it now appears in the statute.). The law then provides that 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); 38 C.F.R. § 21.9640. The percentage of maximum amounts payable is as follows: 50 percent with at least 90 days, but less than 6 months, of creditable active duty service; 60 percent with at least 6 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. See 38 C.F.R. § 21.9640(a). Analysis The Board notes at the outset that entitlement to Chapter 33 educational assistance benefits is not at issue as entitlement has been established. The issue on appeal concerns the rate of payment of Chapter 33 benefits that the Veteran is entitled to. The Veteran asserts that he is entitled to Chapter 33 benefits at the 100 percent rate of payment rather than at the 60 percent rate that he has been awarded. He does not contend that his active service meets the required 36 months for entitlement at the 100 percent level, but he asserts that he was separated from service after serving 30 or more continuous days due to a service-connected disability. First, there is no dispute that the Veteran served well over 30 continuous days while on active duty from July 2010 to August 2011, including service in support of Operation Enduring Freedom under the authority of 10 U.S.C. § 12302. See DD Form 214 (Certificate of Release or Discharge from Active Duty). Second, regarding separation from service due to a service-connected disability, the Veteran explained via electronic mail in July 2016 that he sustained injuries from a suicide bomber IED (improvised explosive device) in May 2011 while he was deployed in Afghanistan during Operation Enduring Freedom. Service treatment records in May 2011 note that he was a gunner in the first truck when they began to move out and that an IED exploded after they halted for a minute. These records show that the Veteran underwent an Acute Concussion Evaluation (MACE) test (with results revealing a score of [25]/30). The Veteran reported on a June 2011 Post-Deployment Health Assessment Form (DD Form 2796) that he had been "wounded, injured, assaulted, or otherwise hurt" during his deployment in Afghanistan and that he had been seen by a healthcare worker four times while he was deployed. When asked how difficult his emotional problems (e.g. such as feeling depressed or anxious) had been on his work, daily functioning at home and/or ability to get along with others over the past four weeks, he replied "somewhat difficult". He also reported that his problems were ongoing and included irritability and sleep problems, including nightmares. The provider of this assessment noted that the Veteran had been involved in an IED explosion and recommended that he undergo a mental health evaluation once back in the United States. A Statement of Medical Examination and Duty Status (DA Form 2173) dated in July 2011 shows that the Veteran suffered permanent partial noise induced hearing loss in the May 2011 IED explosion. There is no indication that a mental health evaluation was performed. His DD Form 214 shows that he was released from active duty in July 2011 for completion of required active service. The Veteran explained in the June 2016 electronic mail that it took the Army four years to process his medical discharge and permanently retire him from active duty as a result of disability from the May 2011 injury. He testified in May 2021 that he was given an identification card which shows that he was discharged from active duty in August 2011 due to a medical disability. A xeroxed copy of the identification card is on file, but it is of poor quality and is essentially illegible. In August 2011, the Veteran filed a claim for compensation benefits for injuries related to the May 2011 inservice IED incident, including traumatic brain injury (TBI). A VA mental health intake record in November 2011 reflects the Veteran's report that he was having nightmares once a week as well as depression and sleep issues related to his experiences while deployed in Afghanistan. He also reported that these symptoms were affecting his daily functioning and his college courses. He was assessed as having PTSD. Records show that he began attending VA individual psychotherapy sessions in January 2012. In a March 2012 rating decision, the Agency of Original Jurisdiction (AOJ) granted the Veteran's claim for service connection for PTSD and assigned a 70 percent rating effective the day after his separation from active duty, on August 24, 2011. The AOJ also granted service connection for TBI and assigned a 10 percent rating. Department of the Army Orders show that the Veteran was ordered to active duty for one day on three occasions during the May 2015 to June 2015 timeframe under the authority of 12301(h) of Title 10, United States Code, to participate in "Reserve Component Managed Care-Evaluation/Disability Evaluation System...Related Medical Appointments". A Physical Disability Evaluation System record in July 2015 shows that the Veteran was found to not meet retention standards due to PTSD and TBI. The onset of these conditions is noted to stem from the line of duty incident in May 2011. This record also shows that the Veteran had been placed on temporary and permanent profiles since August 25, 2011. It additionally notes that the persistence of the Veteran's symptoms interfered with effective military performance and that he had not been able to perform his military occupational specialty (MOS) duties. In September 2015 and October 2015, Medical Evaluation Board and Physical Evaluation Board (PEB) proceedings were initiated finding the Veteran unfit for duty due to PTSD. The PEB report notes that the disability disposition was based on disease or injury incurred in the line of duty in combat with an enemy of the United States and as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war. Army Order D 307-21 in November 2015 shows that the Veteran was being released from assignment and duty because of a physical disability that occurred while enlisted and entitled to base pay under conditions for retirement for physical disability, effective December 8, 2015. Similarly, Departments of the Army and the Air Force Orders 327-074 in November 2015 show that the Veteran was being pre discharged from the Army National Guard and placed on the permanent disability retired list effective December 8, 2015. Also in November 2015, the Department of the Army, United States Army Physical Disability Agency, released a Memorandum showing that the Veteran was found to have a disability and was being permanently retired with a disability of 70 percent. As the evidence outlined above shows, the Veteran was not immediately discharged at the end of his qualifying service period (active-duty mobilization) in August 2011 due to a service-connected disability, but rather he was returned to Reserve status and was subsequently given a disability retirement in December 2015. In denying the Veteran a higher level of Chapter 33 benefits, the AOJ remarked in the statement of the case that there are no provisions of the law which would allow the VA to convert service in either the Selected Reserves or Individual Ready Reserves into an active-duty equivalent for the purpose of granting eligibility to Post 9/11 GI Bill benefits. While this is true, the issue being considered is whether the Veteran's discharge from his qualifying active service in August 2011 is from a service-connected disability. In this regard, it is not explicitly stated in the law or regulations pertaining to the Post-9/11 GI Bill that authorization to determine whether a discharge is due to service-connected disability is limited to the Department of Defense. This is so when considering that the provision under 38 C.F.R. § 21.9520(b) regarding basic eligibility based on 30 continuous days of active service due to a service-connected disability is silent as to the source of the authority for determining whether the individual is discharged due to a service-connected disability. In contrast, the provision under C.F.R. § 21.9520(a)(5) imposes a limitation that a "hardship" determination must be made by the Secretary of the appropriate military department regarding establishing basic eligibility for Chapter 33 educational assistance benefits. That is, the Secretary concerned is given sole authority to determine if the discharge was due to hardship. This implies that such a limitation is not intended where it is not stated. Accordingly, the Board finds that the law and regulations support VA's legal right to determine if a discharge is due to a service-connected disability for purposes of establishing entitlement to payment of Chapter 33 educational assistance benefits at the 100 percent rate. In a larger context, this is consistent with the overall statutory framework, which gives VA the primary authority to determine entitlement to service connection. As noted, the Veteran reported having emotional problems to include irritability and sleep problems on the June 2011 post-deployment health assessment form over the previous four weeks related to the May 2011 combat incident, and his reserve records show that he had been placed on a profile beginning on August 25, 2011 and he was not able to perform his MOS duties due to PTSD and TBI. Furthermore, he was subsequently given a medical retirement due to permanent disability diagnosed as PTSD stemming from the May 2011 combat injury that occurred during his period of qualifying active service. In short, although he was medically retired from the Army National Guard in December 2015, 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. With resolution of all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's release from service was due to a service-connected disability. In consideration of this finding and the finding that he was discharged after more than 30 days of continuous active qualifying service, his claim for a higher rate of payment for Chapter 33 educational assistance, to the maximum rate of 100 percent, is granted. 38 C.F.R. § 5107(b); 38 C.F.R. § 21.9640. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Shawkey, 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.