Citation Nr: 21024751 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 15-20 063 DATE: April 26, 2021 REMANDED Entitlement to educational assistance benefits in excess of 20 days under 38 U.S.C. Chapter 33 (Post-9/11 GI Bill) is remanded. REASONS FOR REMAND 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 case 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. The case has been returned to the Board. 1. Entitlement to educational assistance benefits in excess of 20 days under the Post-9/11 GI Bill is remanded. 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. The Veteran disagreed with that 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-9/11 GI Bill benefits to which the Veteran was entitled in light of BO v. Wilkie. Presently, the issue is whether the Veteran is entitled to more than 20 days of education benefits under the Post-9/11 GI Bill. The law provides that where an individual is eligible for two or more education programs, including Chapter 30 and Chapter 33, the aggregate period for which any person may receive assistance may not exceed 48 months (or the part-time equivalent). 38 U.S.C. § 3695(a); 38 C.F.R. § 21.4020(a). Available records show that the Veteran used his education benefits under MGIB from 1997 to 2005. Records also indicate that the Veteran received benefits under the tuition assistance top-up (TATU) program. For veterans or active servicemembers who are eligible for Chapter 30 educational assistance benefits, a TATU program permits VA to issue payment to an individual for all or any portion of the difference between tuition assistance amount paid by the military department concerned and the total cost of tuition and related charges for an approved program of education. 38 U.S.C. § 3014(b). However, VA will make a charge against the entitlement under the individual’s basic educational assistance and the individual’s TATU entitlement using a specific calculation established under 38 C.F.R § 21.7076. According to a March 2005 VA letter, the Veteran had used 15 months and 12 days of TATU benefits and 35 months and 8 days of Chapter 30 entitlement as of May 8, 2005. VA also informed the Veteran that he had 20 months and 18 days remaining under TATU and zero months and 22 days of remaining Chapter 30 entitlement. There is no indication in the record that the Veteran had used any further entitlement under either the TATU program or Chapter 30; however, VA informed the Veteran that he had only 20 days of MGIB or Chapter 30 entitlement when he applied for Post-9/11 GI Bill benefits in 2014. VA has not provided a full accounting of the Veteran’s use of MGIB benefits, including any charges against that entitlement from the TATU program, and the available records do not reflect how the Veteran’s remaining entitlement was calculated. Before the Board can accurately calculate the Post-9/11 GI Bill entitlement that the Veteran is eligible to receive, a remand is required to conduct a proper audit of the Veteran’s use of education benefits. The matter is REMANDED for the following actions: 1. Prepare an accounting regarding the Veteran’s use of MGIB, including any charge against that entitlement from the Veteran’s use of the TATU program, from 1997 to 2005. The accounting/audit should reflect the dates of each period of school enrollment, the amount of entitlement used during each period of enrollment, and the entitlement remaining after each period of enrollment. The accounting/audit should set forth the total amount of MGIB benefits used by the Veteran. The supporting evidence used for creating the accounting/audit with the audit report should be provided. A copy of the accounting should be provided to the Veteran. 2. Then, readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, send the Veteran a supplemental statement of the case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Journet Shaw, 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.