Citation Nr: 21068093 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 15-20 063 DATE: November 9, 2021 ORDER Entitlement to payment of 20 days of educational assistance benefits under Chapter 30, Title 38, United States Code (Montgomery GI Bill) is granted. Entitlement to payment of 12 months of educational assistance benefits under 38 U.S.C. Chapter 33 (Post-9/11 GI Bill) is granted. FINDINGS OF FACT 1. The Veteran served on active duty in the U.S. Army from December 1990 to April 1995 and from December 1998 to February 2014. 2. The Veteran received 35 months and 10 days of education benefits under Chapter 30 at the time of his November 2014 application for Chapter 33 benefits. CONCLUSIONS OF LAW 1. The criteria for 20 days of educational assistance benefits under the Montgomery GI Bill provision of Chapter 30, Title 38, United States Code, are met. 38 U.S.C. §§ 3011, 3301, 3311, 3322, 3327; 38 C.F.R. §§38 C.F.R. §§ 21.4020, 21.7072, 21.9520, 21.9550. 2. The criteria for an additional 12 months of educational assistance benefits under the Post-9/11 GI Bill provision of Chapter 33, Title 38, United States Code, are met. 38 U.S.C. §§ 3011, 3301, 3311, 3322, 3327; 38 C.F.R. §§38 C.F.R. §§ 21.4020, 21.7072, 21.9520, 21.9550. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from December 1990 to April 1995 and from December 1998 to February 2014. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 decision by the Department of Veterans Affairs (VA) Regional Office (RO), which found that the Veteran had 20 days of Post-9/11 GI Bill benefits. The matter was initially brought before the Board in January 2019, at which time the Board found that the Veteran had made an irrevocable election of his Post-9/11 benefits, and his appeal to rescind those benefits was denied. The Veteran appealed the January 2019 decision to the U.S. Court of Appeals for Veterans Claims (Court). In a September 2020 memorandum decision, the Court reversed the Board's January 2019 decision and remanded the matter consistent with the decision. In April 2021, the Board remanded the matter for further evidentiary development. The Board finds that there has been substantial compliance with the prior remand instructions and that no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As background, the Board notes that there is no dispute that the Veteran qualified for both the Montgomery GI Bill (MGIB) and the Post-9/11 GI Bill programs as he had two separate periods of active duty service from December 1990 to April 1995 and December 1998 to February 2014. The Veteran had applied for education benefits under the Post-9/11 GI Bill in 2014. In a November 2014 letter, VA informed the Veteran that he had 20 days remaining of education benefits under the MGIB. If he chose to exhaust the 20 days of MGIB benefits, then he would be eligible for up to 12 months of Post-9/11 GI Bill benefits. Otherwise, if he chose to relinquish his MGIB benefits, he would be entitled to 20 days of Post-9/11 GI Bill benefits. Later that month, the Veteran responded by choosing to relinquish his MGIB benefits, which entitled him to receive 20 days of Post-9/11 GI Bill benefits. However, the Veteran disagreed with the November 2014 determination and asserted that he was entitled to receive 12 months and 20 days of Post-9/11 GI Bill. However, in a January 2019 Board decision, the Board found that under the relevant regulatory provisions, the Veteran had made an irrevocable election of Post-9/11 GI Bill benefits in lieu of MGIB benefits, and the irrevocable election for Post-9/11 GI Bill benefits could not be rescinded. Thus, the Board concluded that the Veteran was entitled to receive no more than 20 days of Post-9/11 GI Bill benefits. See 38 C.F.R. §§ 21.4020, 21.7072, 21.9520, 21.9550. As noted above, the January 2019 Board decision was appealed to the Court, which issued a memorandum decision in September 2020. The Court found that the facts of the present case were indistinguishable from the facts in a recent Court decision, BO v. Wilkie, 31 Vet. App. 321 (2019). In BO v. Wilkie, the Court held that a veteran with two or more qualifying periods of service can receive benefits under both the MGIB and Post-9/11 GI Bill. Id. at 324. The Court stated that a veteran need not relinquish or exhaust any remaining benefits under the MGIB to obtain benefits under the Post-9/11 Gill Bill. Id. The Court further found that any irrevocable waiver or relinquishment of benefits under one of these programs was null. Id. Based on these holdings, the Court, in its September 2020 memorandum decision, reversed the January 2019 Board decision finding that the Veteran was only entitled to 20 days of educational assistance benefits under the Post-9/11 GI Bill. The Court remanded the case and directed the Board to calculate the amount of Post-9/11GI Bill benefits to which the Veteran was entitled in light of BO v. Wilkie. Pertinent to this appeal is the U.S. Court of Appeals for the Federal Circuit (Court) recently issued precedential case in Rudisill v. McDonough, No. 20-1637 (Fed. Cir. 2021). In this case, the Court held that the Veteran was not limited to the unused portion of his 36-month entitlement under Chapter 30 when he elected Chapter 33 benefits in lieu of Chapter 30 benefits, but rather he was entitled to the aggregate 48-month cap of benefits based on his multiple periods of qualifying service. See also Bo v. Wilkie, 31 Vet. App. 321, 324 (2019). By applying the Court's holding above to this appeal, the Veteran is not limited to the total of 36 months of education benefits under Chapter 30 since he has multiple periods of qualifying service. However, he is subject to the aggregate 48-month cap of benefits based on his multiple periods of qualifying service under different programs. 38 U.S.C. § 3695(a); 38 C.F.R. § 21.4020(a). Thus, the Veteran can receive no more than an aggregate 48 months of education benefits regardless of whether he had unused Chapter 30 benefits at the time of his Chapter 33 benefit election. Id. Accordingly, he is entitled to the 20 days of unused Chapter 30 benefits in addition to 12 months of Chapter 33 benefits for an additional total 12 months and 20 days of benefits. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Bilstein, 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.