Citation Nr: A21017658 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 190617-66690 DATE: November 1, 2021 ORDER The appeal as to the issue of entitlement to additional educational assistance benefits under Chapter 33, Title 38, of the United States Code (Post-9/11 GI Bill), is dismissed. FINDING OF FACT While the current appeal was pending, the Department of Veterans Affairs (VA) restored 9 months and 19 days of entitlement to Chapter 33 educational assistance benefits, which represents the full amount of the Veteran's remaining entitlement. CONCLUSION OF LAW There remains no case or controversy with respect to the matter of entitlement to additional educational assistance benefits under Chapter 33, Title 38, of the United States Code (Post-9/11 GI Bill) over which the Board may exercise jurisdiction. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.103, 20.104. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from May 2006 to May 2010, to include service in Iraq. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2019 decision issued by the VA Regional Office (RO) in Buffalo, New York. The Veteran timely appealed to the Board in June 2019, requesting direct review of the evidence considered by the agency of original jurisdiction. 38 C.F.R. §§ 20.201, 20.202(b)(1). Entitlement to additional educational assistance benefits under Chapter 33, Title 38, of the United States Code (Post-9/11 GI Bill). Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. One of the principal functions of the Board is to make determinations of appellate jurisdiction. 38 C.F.R. § 20.103. The Board may address questions pertaining to its jurisdictional authority to review a particular case. 38 C.F.R. § 20.104(c). A review of the record shows that the Veteran previously applied for, and was approved for use of, Chapter 33 educational assistance benefits. By way of letters dated in March 2010 and September 2010, he was informed that he had been awarded VA education benefits under the Post-9/11 GI Bill at the 100 percent rate and that he had to use his entitlement by May 8, 2025. The record also shows that he received over 48 months of Veteran Readiness and Employment (VR&E) (formerly known as Vocational Rehabilitation and Employment) services under Chapter 31, Title 38, of the United States Code. In May 2019, the Veteran filed a request for change of program or place of training under Chapter 33. He reported that he had previously used Chapter 33 benefits for a program of education at California State University, Northridge, but that he had stopped his training on December 25, 2018. In June 2019, the RO determined that the Veteran was ineligible for Post-9/11 GI Bill benefits because he had used a total of 48 months of education benefits under multiple VA education programs. The Board notes that, in December 2015, VA's General Counsel issued an advisory opinion, entitled "Procedural Advisory: 48-Month Rule and Chapter 31 Entitlement Used (Original Claims)," which held that "the use of benefits under 38 U.S.C. chapter 31 does not limit the use of education benefits listed under 38 U.S.C. § 3695(a)." The advisory opinion further stated: "Education Service will provide additional guidance for non-original claims (i.e., supplementals, specialty cases, and disputes) for processing and retroactive scenarios in a future advisory. The only change required for this advisory is to discontinue deducting chapter 31 benefits used." In April 2021, VA reviewed a long-standing interpretation of the "48-month rule," 38 U.S.C. § 3695, and determined a more favorable interpretation would help eligible Veterans maximize their education benefits. Now, veterans who use Veteran Readiness and Employment (VR&E) benefits prior to using a VA education program, such as the Montgomery GI Bill or Post-9/11 GI Bill (Chapter 30), can still use up to 48 total months of the other educational assistance benefit programs. See www.benefits.va.gov/GIBILL/docs/ 48_Month_Rule_FAQs.pdf. Based on the new VA interpretation, the VR&E benefits used by the Veteran are not to be used in calculating the amount of educational benefits used when determining the educational benefits remaining available to him. Here, an undated Memorandum of Record indicates that VA will no longer count the use of VR&E benefits against the 48-month limit on GI Bill benefits. The document further indicates that a previous decision which directed inclusion of Chapter 31 entitlement as part of the overall computation of total months of entitlement has been reversed. Correspondence to the Veteran informed him that his original entitlement has been adjusted by removing the number of months of VR&E benefits previously used, which caused an increase in available entitlement. A subsequent work product summary reflects that the Veteran used only 26 months and 10 days of Chapter 33 benefits. Finally, a May 2021 Certificate of Eligibility reflects that the Veteran has 9 months and 19 days of entitlement under Chapter 33 remaining. The letter also reflects that he currently meets the criteria to participate in an approved program of training under the VA Veteran Employment Through Technology Education Courses (VET TEC) Pilot Program. Thus, given the restorative action taken with respect to the Veteran's request for Chapter 33 educational assistance benefits, the Board finds that any issue regarding whether he is entitled to additional VA educational assistance benefits under the Post-9/11 GI Bill is now moot. There no longer remains a question for appellate consideration by the Board. See 38 C.F.R. § 20.104(b). The appeal must be dismissed. See 38 U.S.C. § 7104(a); 38 C.F.R. § 20.104 DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kettler, 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.