Citation Nr: 22012212 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 18-38 395A DATE: March 2, 2022 ORDER A 100 percent rate for educational assistance benefits under Chapter 33 of Title 38, U.S.C., (also known as the Post 9/11 GI Bill) is granted. FINDINGS OF FACT 1. The Veteran served on active duty for over 30 continuous days. 2. The Veteran was discharged from service due to a service-connected disability. CONCLUSION OF LAW The criteria for education benefits at the 100 percent level under Chapter 33 (Post-9/11 GI Bill) are met. 38 U.S.C. §§ 3301, 3311, 5107; 38 C.F.R. §§ 3.102, 21.9505, 21.9520, 21.9640. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 2000 to March 2003 This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2018 decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a Board virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This matter was previously before the Board in May 2021 at which time the case was remanded for additional development. Legal Criteria The Post 9/11 GI Bill provides for VA educational assistance for members of the Armed Forces based on creditable active service after September 10, 2001. For members of the regular components of the Armed Forces, qualifying active-duty service under the Post-9/11 GI Bill 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 12340b or 14 U.S.C. § 712. See 38 U.S.C. § 3301(1)(B). (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.). The law then provides that the amount of educational assistance payable under 38 U.S.C. 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); 38 C.F.R. § 21.9640. The percentage of maximum amounts payable is as follows: 50 percent with at least 90 days, but less than 6 months, of creditable active-duty service; 60 percent with at least 6 months, but less than 18 months, of creditable active-duty service; 70 percent with at least 18 months, but less than 24 months, of creditable active-duty service; 80 percent with at least 24 months, but less than 30 months, of creditable active-duty service; 90 percent with at least 30 months, but less than 36 months, of creditable active-duty service; and 100 percent with at least 36 months of creditable active-duty service; or with at least 30 continuous days of creditable active-duty service and a discharge due to a service-connected disability. See 38 C.F.R. § 21.9640(a). Analysis The Board notes at the outset that entitlement to Chapter 33 educational assistance benefits is not at issue as entitlement has been established. The issue on appeal concerns the rate of payment of Chapter 33 benefits that the Veteran is entitled to. The Veteran asserts that he is entitled to Chapter 33 benefits at the 100 percent rate of payment rather than at the 70 percent rate that he has been awarded. He does not contend that his active service meets the required 36 months for entitlement at the 100 percent level, but he asserts that he was separated from service after serving 30 or more continuous days due to a service-connected disability. As a starting point, there is no dispute that the Veteran served well over 30 continuous days while on active duty from March 2000 to March 2003. See DD Forms 214 (Certificate of Release or Discharge from Active Duty). Regarding the Veteran's assertion that he was separated from service due to a service-connected disability, the Board agrees. The Veteran's service treatment records show that he participated in a Medical Board Evaluation in October 2002 and a Physical Evaluation Board (PEB) in January 2003. Notably, the Medical Evaluation Board Narrative Summary Psychiatry shows that the Veteran was first diagnosed as having bipolar disorder in August 2002 and that his symptoms were brought on by difficulty and stress at work. He did report having one suicidal attempt prior to service involving an issue with his girlfriend. His only psychiatric treatment prior to service involved having to see his high school counselor for a reason that he could not recall. Nonetheless, the January 2003 PEB shows that there was sufficient evidence to substantiate an EPTS (existed prior to service) condition which made the Veteran unfit for service. The PEB also found that the condition was not permanently aggravated by service. The Veteran's original separation record, DD Form 214, shows that he was separated from active duty in March 2003 due to a disability that existed prior to service, PEB. At a VA psychiatric examination in March 2003, the Veteran reported that he had his first episode with symptoms that included racing thoughts and flight of ideas while serving at Fort Drum. In June 2003, the AOJ granted service connection for bipolar disorder and assigned the Veteran a 30 percent rating effective in March 2003. The Veteran testified in February 2021 that the Secretary of the Army awarded him a 10 percent rating for his disability and that the Army does not give a disability rating unless it is service connected. In this regard, in September 2016, the Physical Disability Board of Review (PDBR) recommended that the Veteran receive a 10 percent disability rating for his bipolar disorder. In December 2016, the Department of the Army decided that the Veteran's disability rating should be modified based on the PDBR findings; however, it would not result in any change to his separation document. That notwithstanding, the Veteran also testified that he received an updated DD Form 214 which shows he was discharged due to disability but he was not sure if it was in the claims file. His representative said that he would submit it to the Board. In June 2021, the AOJ received a second DD Form 214 showing that the reason for the Veteran's separation from service was "disability, severance pay". This record also notes that the DD Form 214 was administratively reissued per ABCMR (Army Board for Correction of Military Records) proceedings in July 2019. In consideration of the corrected DD Form 214 showing that the Veteran was discharged from service due to a service-connected disability and the finding that he was discharged after more than 30 days of continuous active qualifying service, his claim for a higher rate of payment for Chapter 33 educational assistance, to the maximum rate of 100 percent, is granted. 38 C.F.R. § 5107(b); 38 C.F.R. § 21.9640. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Shawkey, 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.