Citation Nr: 22016284 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 18-16 257 DATE: March 21, 2022 REMANDED The claim of entitlement to additional Department of Veterans Affairs (VA) educational assistance benefits 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 in the United States Air Force from January 1994 to January 2014. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2017 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that the Veteran was no longer qualified for payment of Chapter 33 educational assistance benefits because he had exhausted his entitlement to such. The Veteran disagreed with that determination, and this appeal ensued. In November 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. The Board notes that the Veteran has also perfected an appeal as to issues of entitlement to service connection and increased ratings for various disabilities. Although it is the Board's policy to address all issues over which it has jurisdiction in a single decisional document, there is an exception to this policy where there are issues involving education benefits. Issues involving education benefits come under the general exception for issues dependent on completely different law and facts and therefore should be addressed separately. As such, the appeal as to issues of entitlement to service connection and increased ratings for various disabilities will be addressed by the Board in a separate decision. Additional Entitlement to Chapter 33 Educational Assistance Benefits Upon review of the record, the Board finds that the current matter must be remanded for the agency of original jurisdiction (AOJ) to obtain a full accounting demonstrating all months and days of educational assistance benefits used by the Veteran. In the instant case, the Veteran made an irrevocable election, effective December 13, 2013, to receive benefits under the Post-9/11 GI Bill in lieu of receiving benefits under Chapter 30, Title 38, United States Code (the Montgomery GI Bill-Active Duty (MGIB-AD)). In August 2014, the AOJ issued to the Veteran a "Certificate of Eligibility" in which the AOJ certified that the Veteran was entitled to benefits for an approved program of education or training under the Post-9/11 GI Bill. The AOJ also determined that, as of the December 13, 2013, effective date of that election, the Veteran had 29 months and 4 days of educational assistance benefits remaining under Chapter 30 and that he was thus entitled to 29 months and 4 days of Chapter 33 benefits. Notably, under governing law, an eligible individual is entitled to a maximum of 36 months of educational assistance (or its equivalent in part-time educational assistance) under the Post-9/11 GI Bill. See 38 C.F.R. § 21.9550. Further, the law provides that an individual who, as of August 1, 2009, has used entitlement under 38 U.S.C. Chapter 30, but retains unused entitlement under that chapter, makes an irrevocable election to receive educational assistance under the provisions of 38 U.S.C. Chapter 33 in lieu of educational assistance under the provisions of Chapter 30, will be limited to one month (or partial month) of entitlement under Chapter 33 for each month (or partial month) of unused entitlement under Chapter 30 (including any months of Chapter 30 entitlement previously transferred to a dependent that the individual has revoked). 38 U.S.C. § 3327(a)(1), (i); 38 C.F.R. § 21.9550(b)(1). In BO v. Wilkie, the United States Court of Appeals for Veterans Claims (Court) held that veterans with two or more qualifying periods of service can receive benefits under both the Montgomery GI Bill and the Post-9/11 GI Bill. 31 Vet. App. 321, 324 (2019). The Court stated that a veteran need not relinquish or exhaust any remaining benefits under the Montgomery GI Bill to obtain benefits under the Post-9/11 GI Bill. Id. Thus, veterans who use, but do not exhaust MGIB-AD benefits and who then apply for Post-9/11 GI Bill benefits after a separate period of service, are not limited to the total of 36 months provided for the MGIB-AD program. This is so because, as explained by the Court, 38 U.S.C. § 3327 does not apply "in cases of individuals with dual entitlement based on multiple periods of service," but rather, applies only in cases of "individuals with dual entitlement based on a single period of service." Id. at 334. In the instant case, the Veteran had only one period of service. Thus, the limitations sets forth in 38 U.S.C. § 3327 are for application in this case. Here, the record shows that Veteran received Chapter 33 educational assistance benefits while enrolled in a Master of Business Administration program at DeVry University in Austin, Texas, for periods of enrollment dating from September 2, 2014, through his graduation on April 22, 2017. The record then shows that in August 2017, the Veteran filed a VA Form 22-1995, Request for Change of Program or Place of Training, wherein he requested to use Chapter 33 educational assistance benefits to obtain a Graduate Certificate in Cybersecurity. In September 2017, the University of Phoenix submitted an Enrollment Certification showing that the Veteran was enrolled for 3 distance credit hours for the terms running from August 29 to October 3, 2017. In October 2017, however, the Veteran was informed that his claim for Post-9/11 GI Bill benefits could not be approved because he had exhausted his entitlement to VA educational assistance benefits. In other words, the Veteran had used 36 months of VA educational assistance benefits. In disagreeing with the AOJ's denial of his claim, the Veteran asserted that in May or June 2017, he was informed that he had 13 months of entitlement remaining. During his November 2021 hearing, the Veteran reiterated that he had been informed by a Veteran Readiness and Employment (VR&E) counselor that he had 13 months of eligibility remaining under the Post-9/11 GI Bill, and testified that within a few of weeks of being informed of such, he received a letter from VA stating that he had 13 months of Post-9/11 GI Bill benefits remaining. However, as indicated in the January 2018 statement of the case (SOC), VA had determined that the Veteran exhausted his entitlement on April 7, 2017. In the instant case, although the record contains numerous enrollment certifications certifying the Veteran's credit hours for his terms of enrollment at DeVry University, the record fails to contain any Award Letters. The Board notes that Award Letters, as they pertain to Post-9/11 GI Bill benefits, contain information regarding the payment of VA educational assistance benefits, to include informing the veteran of his/her tuition charges and what amount VA will based on the veteran's benefits percentage, monthly housing allowance, and books and supplies stipend. The Award Letters will also shows a veteran's remaining entitlement and time limit to use his/her Post-9/11 GI Bill benefits. Notably, a veteran should receive a new award letter every semester or term. https://benefits.va.gov/gibill/understandingyourawardletter.asp. Without an ability to review the Award Letters, which should have been generated in connection with the AOJ's awards of Post-9/11 GI Bill benefits for the Veteran's program of study at DeVry University, the Board has no way to determine whether the AOJ correctly calculated the Veteran's use of Chapter 33 benefits. Further, as it is unclear whether Award Letters were in fact generated in this case, as it would appear that the education file before the Board is complete, the Board finds that the matter must be remanded for further development, as set forth in the action paragraphs below. The matter is REMANDED for the following action: 1. Associate with the claims folder all records pertaining to the Veteran's application for and use of educational assistance benefits under the MGIB-AD. 2. Ensure that all Award Letters pertaining to the Veteran's use of educational assistance benefits under the Post-9/11 GI Bill have been associated with the record, to specifically include all letters generated from October 2014 to June 2017. The AOJ should also ensure that copies of all award letters are provided to the Veteran. If Award Letters were not generated in connection with the Veteran's schooling at DeVry University, the AOJ should document this fact in writing in the record. 3. Then, prepare an accounting for the Board to be associated with the claims file 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", "three quarter time", and "full 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. A copy of the final audit, with any attached documentation, must be sent to the Veteran. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Neilson, 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.