Citation Nr: 21027529 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 14-13 970 DATE: May 6, 2021 REMANDED The claim of entitlement to a higher level of payment of educational assistance benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill or Chapter 33), currently paid at the 60 percent level, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 2006 to April 2007, from July 2008 to September 2009, and from July 2010 to July 2011. The Veteran testified before the undersigned Veterans Law Judge via videoconference in August 2019. A transcript of the hearing is of record. This case was previously before the Board in October 2019, at which time the Board remanded the issue on appeal for the Agency of Original Jurisdiction (AOJ) to submit a request to the Department of Defense (DoD) to determine the Veteran's periods of service that qualify as active duty service for purposes of entitlement to Chapter 33 educational assistance benefits. The remand instructions further noted that the "DoD should be requested to consider specifically the expanded/revised definition of active duty pursuant to Pub. L. No. 111-377." As is explained in more detail below, the Board determines that the AOJ did not substantially comply with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). In a January 2013 decision, the AOJ determined that the Veteran had 36 months of full-time benefits remaining under the Post-9/11 GI Bill program and that she was entitled to receive such benefits at the 60 percent benefit level based on her 391 days of qualifying active duty service after September 10, 2001. Specifically, this award letter noted that the Veteran was entitled to payment of benefits at the 60 percent level based on her active duty from August 2008 to September 2009. In the December 2013 notice of disagreement (NOD), the Veteran disagreed with that determination, contending that she is entitled to at least 80 percent of benefits allowable. Specifically, she asserts that she served on additional periods of duty that should be included in the AOJ's calculation of the aggregate length of creditable active duty service after September 10, 2001. The record shows that in January 2014, the AOJ sought verification of the Veteran's service from the DoD. Regarding the Veteran's period of eligibility for calculating Post-9/11 GI Bill benefits, DoD responded that the Veteran was eligible for Chapter 33 benefits during the mobilization period, but that her period of service from July, 26 2010, to July 12, 2011, did not qualify since the she was on active duty operational support under Title 32. Although the AOJ has calculated an aggregate length of credible active service after September 10, 2001 based only on her active duty period of service between August 2008 to September 2009, the Veteran has continued to contend that she is entitled to Chapter 33 educational assistance benefits at the 80 percent level or higher. The law provides that the amount of educational assistance payable under 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), 3313; 38 C.F.R. § 21.9640. The regulations provide that benefits are payable at the 40 percent benefit level with at least 90 days, but less than 6 months, of creditable active duty service (i.e., 90-179 days); 50 percent with at least 6 months, but less than 12 months, of creditable active duty service (i.e., 180-364 days); 60 percent with at least 12 months, but less than 18 months, of creditable active duty service (i.e., 365-544 days); 70 percent with at least 18 months, but less than 24 months, of creditable active duty service (i.e., 545-729 days); 80 percent with at least 24 months, but less than 30 months, of creditable active duty service (i.e., 730-909 days); 90 percent with at least 30 months, but less than 36 months, of creditable active duty service (i.e., 910-1094 days); and, 100 percent with at least 36 months of creditable active duty service (i.e., 1095 days or more) or with at least 30 continuous days of creditable active duty service and a discharge due to a service-connected disability. 38 C.F.R. § 21.9640(a). For members of the regular components of the Armed Forces, qualifying active duty service 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 12304b or under 14 U.S.C. § 712. See 38 U.S.C. § 3301(1)(B). Under the regulations issued in March 2009, implementing the original provisions of the Post-9/11 GI Bill, full-time National Guard duty performed pursuant to orders issued under Title 32, United States Code, was specifically excluded from the definition of active duty. See 38 C.F.R. § 21.9505; see also 38 U.S.C. §§ 101 (21), (22)(C) (likewise defining active duty to exclude full-time duty in the National Guard under 32 U.S.C. § 502); 38 C.F.R. § 3.6(c)(3) (defining full-time duty performed by members of the National Guard of any State under 32 U.S.C. § 502 as active duty for training). However, in January 2011, pursuant to Pub. L. No. 111-377 (the Post-9/11 Veterans Educational Assistance Improvements Act of 2010), the definition of active duty was expressly expanded for purposes of Post-9/11 GI Bill eligibility to include certain full-time service in the National Guard, as follows: (1) in the National Guard of a State for the purpose of organizing, administering, recruiting, instructing, or training the National Guard, and (2) in the National Guard under section 502(f) of Title 32 when authorized by the President or the Secretary of Defense for the purpose of responding to a national emergency declared by the President and supported by Federal funds. 38 U.S.C. § 3301(1)(C). The amended definition is in effect as of August 1, 2009, as if it was included in the original enactment of the Post-9/11 GI Bill. Pub. L. No. 111-377, § 101(d). (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). In the October 2019 remand, the Board noted that the Veteran has submitted copies of orders variously showing that she was ordered to active duty training from October 1, 2010 to June 30, 2011, under the authority of 32 U.S.C. § 502(f) to serve on the task force border guard. The Veteran submitted numerous copies of orders in August 2019 as well. Moreover, the Board determined that further clarification was needed regarding the Veteran's periods of service and the characterization of the status of pertinent periods. The Board explained that it was not clear from the DoD's January 2014 response whether the amended definition of active duty, to include certain types of service performed under the authority of 32 U.S.C. § 502(f), was taken into consideration when determining the Veteran's eligibility for Chapter 33 benefits. Accordingly, because the Veteran's contentions in this case directly and specifically referenced the expansion of the pertinent definition of active duty pursuant to Pub. L. No. 111-377, and because the Board was unable to conclude from the determinations of record whether the Veteran's contentions and the revised law had been contemplated in consideration of each of the Veteran's pertinent periods of service at issue, the Board found it necessary to remand the matter for the AOJ to make another request with DoD to determine the aggregate length of the Veteran's periods of active duty service for Post-9/11 GI Bill purposes with attention to the current revised/expanded definition of active duty under Pub. L. No. 111-377. The Board instructed the AOJ to also take appropriate steps to seek better documentation from the service department, including any pertinent service personnel records, concerning the nature of the Veteran's responsibilities during pertinent periods of service. The record shows that following the Board's October 2019 remand instructions, the AOJ simply searched the VA/DoD Identity Repository (VADIR), associated with the claims file her Service Information Report in August 2020, and issued an August 2020 supplemental statement of the case (SSOC), which denied the matter on appeal. While the August 2020 Service Information Report listed the Veteran's periods of active duty, including Army National Guard active duty periods, the report did not address or answer whether any of the Veteran's periods of active duty, including the period from October 2010 to June 2011, qualified as active duty for the Post-9/11 GI Bill and/or whether she was ordered to active duty training under the authority of 32 U.S.C. § 502(f) pursuant to the current revised/ expanded definition active duty under Pub. L. No. 111-377. In fact, while this report lists that certain periods of her Army National Guard service qualified as active duty or were periods of non-qualifying active duty, the report expressly notes that qualifying eligibility for the period of service from August 31, 2010, to July 12, 2011, could not be determined. Thus, the Board must remand the matter on appeal again in order for the AOJ to substantially comply with the October 2019 remand instruction. See Stegall, 11 Vet. App. at 268. Specifically, the AOJ should submit a request to the DoD to determine the Veteran's periods of service that qualify as active duty service for purposes of entitlement to Chapter 33 educational assistance benefits. Additionally, DoD should be requested to consider specifically the expanded/revised definition of active duty pursuant to Pub. L. No. 111-377. The matter is REMANDED for the following actions: 1. Undertake the necessary steps to develop whether any of the Veteran's periods of service qualify as active duty service for purposes of entitlement to Chapter 33 educational assistance benefits. The AOJ should contact and submit a request to the appropriate records repository, to include the Department of Defense (DoD), to determine whether the Veteran's Army National Guard service from October 1, 2010, to June 30, 2011, qualifies as active duty service under 38 U.S.C. § 3301(C)(1). DoD should be requested to consider specifically the expanded/revised definition of active duty pursuant to Pub. L. No. 111-377, and to provide an explanation of the Veteran's duties during her mobilization during this period. 2. If a determination is made that the Veteran's service does not qualify as active duty service under 38 U.S.C. § 3301(C)(1), specify how the Veteran's service did not meet the requirements (1) for the purpose of organizing, administering, recruiting, instructing, or training the National Guard, or (2) under section 502(f) of Title 32 when authorized by the President or the Secretary of Defense for the purpose of responding to a national emergency declared by the President and supported by Federal funds. 3. Document and associate any findings made by the relevant service departments with the claims file. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hodzic, 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.