Citation Nr: 21009247 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 15-01 132 DATE: February 22, 2021 REMANDED Entitlement to additional Department of Veterans Affairs (VA) educational assistance benefits in excess of 4 days as of August 23, 2014, 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 May 1999 to May 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that the Veteran had only 4 days of full-time Post-9/11 GI Bill benefits remaining. The Veteran’s claim was remanded by the Board in September 2020. None of the requested development specified by the Board was accomplished. Accordingly, the Veteran’s claim must be remanded for the agency of original jurisdiction (AOJ) to accomplish the previously requested development. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran’s claim had been remanded on a prior occasion, in June 2018, to associate with the claims folder all records pertaining to the Veteran’s application for and use of educational assistance benefits under Chapter 30, Title 38, United States Code (the Montgomery GI Bill-Active Duty (MGIB-AD)). The AOJ was then directed to obtain a full accounting demonstrating all months and days of educational assistance benefits used by the Veteran. Such accounting was to indicate clearly the precise total number of months and days of educational assistance benefits used by the Veteran prior to August 23, 2014, to include those used under Chapter 30 and under Chapter 33. Additionally, the audit was to include a clear determination of the number of months and days to be charged against the Veteran based on “part time” school enrollment and was to set forth, with specificity, the method for determining such total number. A review of the record shows that on remand from the Board, the AOJ attempted to obtain records pertaining to the Veteran’s application for and use of educational assistance benefits under the MGIB-AD. Via e-mail dated in June 2019, the AOJ was informed that “[t]here is no physical file” and that all records had been associated with the Veteran’s electronic claims file. Notably, however, as discussed in the Board’s prior remand action, save for one document reflecting educational assistance benefits used in 2007, the Veteran’s electronic claims file contains no records pertaining to the Veteran’s application for or use of Chapter 30 educational assistance benefits. Without any documentation pertaining to the Veteran’s use of Chapter 30 benefits, the Board has no way of determining whether the calculated use of Chapter 30 benefits is in fact correct. Further, a folder note dated in August 2014 states the following: “[R]eview of folder found claimant had used 38 m[onths] 13 days under Chapter 30.” This would indicate that documents demonstrating the Veteran’s prior use of Chapter 30 did at one time exist. In this regard, the Board notes that, consistent with the procedures set forth in 38 C.F.R. § 3.159(c), in requesting records from Federal facilities, efforts to obtain such records should continue until VA concludes that the records sought do not exist or that further efforts to obtain such records would be futile. See 38 C.F.R. § 3.159(c)(2). To that end, as the record contains no indication of the efforts undertaken to locate the records regarding the Veteran’s use of Chapter 30 benefits, to include any attempts to recreate the records, and there has been no formal finding of unavailability, the Board cannot conclude from the e-mail response of record that such records are missing or that additional efforts to obtain such records, to include efforts to recreate them, would be futile. Accordingly, the Board finds that another remand of the matter is required. Id. On remand, the AOJ must undertake appropriate action to obtain all records pertaining to the Veteran’s use of Chapter 30 educational assistance benefits. If these records are not located, the AOJ is asked to recreate these records, to the extent possible. If, after continued efforts to obtain the Veteran’s VA records pertaining to his use of Chapter 30 educational assistance benefits, the AOJ concludes that the records do not exist or that further efforts to obtain them would be futile, and if the AOJ is unable to recreate these records, the AOJ should provide the Veteran with written notice of that fact. See 38 C.F.R. § 3.159(e). The Board further observes that an audit was not completed on remand. The AOJ concluded that because the Veteran’s Chapter 30 records could not be found, an audit of entitlement used under Chapter 30 was not available. Notably, in its June 2018 remand, the Board requested that the AOJ obtain a full accounting demonstrating all months and days of educational assistance benefits used by the Veteran, to include those used under Chapter 30 and under Chapter 33. As explained in the Board’s June 2018 remand, there existed certain discrepancies in the record regarding the amount of entitlement used under Chapter 33. Additionally, the Board’s own calculation of entitlement used under Chapter 33 for certain terms differed from the amount of entitlement used calculated by the RO. Although the AOJ explained why an audit was not obtained regarding the Veteran’s use of entitlement of Chapter 30, the record contains no explanation as to why the requested accounting demonstrating all months and days of educational assistance benefits used by the Veteran under Chapter 33 could not be prepared. Thus, as the AOJ failed to fully or substantially comply with the Board’s remand directives with regard to obtaining an accounting of the Veteran’s use of Chapter 33 educational assistance benefits, another remand of the matter is required on this basis as well. See Stegall, supra. Then, prepare an accounting for the Board to be associated with the claims file, with a copy to the Veteran, indicating clearly the precise total number of months and days of Chapter 30 and 33 educational assistance benefits used by the Veteran prior to August 23, 2014. The audit must make clear the institution and dates of attendance that represent the number of months and days used to calculate the total benefits already used. A clear determination of the number of months and days to be charged against based on “part time” school enrollment must also be set forth and the method for determining such total number should be explained with specificity. The auditor is requested to attach any records referred to in the audit to the prepared final document. The matters are REMANDED for the following action: 1. Engage in an exhaustive search, taking all procedurally appropriate actions, to locate all records pertaining to the Veteran’s application for and use of educational assistance benefits under the MGIB-AD. If any location contacted suggests other sources, those sources must be encompassed by the search. All sources contacted, as well as responses received, must be documented in the record. If these records are not located, the AOJ is asked to recreate these records, to the extent possible. All efforts to do so should be documented in the record. If, after continued efforts to obtain the Veteran’s records pertaining to his use of Chapter 30 educational assistance benefits, it is concluded that the records do not exist or that further efforts to obtain them would be futile, and that the records cannot be recreated, the AOJ should provide the Veteran with oral or written notice of that fact, consistent with 38 C.F.R. § 3.159(c). 2. Then, prepare an accounting for the Board to be associated with the claims file, with a copy to the Veteran, indicating clearly the precise total number of months and days of Chapter 30 and 33 educational assistance benefits used by the Veteran prior to August 23, 2014. The audit must make clear the institution and dates of attendance that represent the number of months and days used to calculate the total benefits already used. A clear determination of the number of months and days to be charged against entitlement based on “part time” school enrollment must also be set forth and the method for determining such total number should be explained with specificity. The auditor is requested to attach any records referred to in the audit to the prepared final document. If it is again determined that an audit cannot be prepared because the Veteran’s records pertaining to his use of Chapter 30 educational assistance benefits cannot be located, the AOJ must still obtain a full accounting regarding the Veteran’s use of entitlement under Chapter 33. K. Parakkal 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.