Citation Nr: 22039751 Decision Date: 07/12/22 Archive Date: 07/12/22 DOCKET NO. 15-45 647 DATE: July 12, 2022 REMANDED Entitlement to additional Department of Veterans Affairs (VA) educational assistance benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) in excess of 2 months and 5 days is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 2002 to July 2002, and in the United States Air Force from July 2003 to September 2008 and January 2016 to September 2016. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 decision of the Department of Veterans Affairs (VA) Regional Office. In this decision the Agency of Original Jurisdiction (AOJ) determined that the Veteran had only 2 months and 5 days of full-time Post-9/11 GI Bill benefits remaining. The Veteran testified before the undersigned Veterans Law Judge at a Board virtual hearing in March 2022. A transcript of the hearing is of record. Generally, an individual entitled to basic educational assistance under Chapters 30 and 33 is entitled to 36 months of educational assistance benefits. 38 U.S.C. § 3013(a)(1); 38 C.F.R. §§ 21.7072, 21.9550(a). Although an individual may be entitled to benefits under various education programs, there is a limit as to the total aggregate period for which any person may receive educational assistance under two or more educational programs. The statute and regulations limit such educational assistance including under Chapters 30 and 33 of Title 38 of the United States Code and Chapter 1606 of Title 10 of the United States Code to no more than 48 months in the aggregate. 38 U.S.C. § 3695; 38 C.F.R. § 21.4020. This includes when a Veteran has multiple periods of qualifying service. See Bo v. Wilkie, 31 Vet. App. 321 (August 2019). An extension is provided under 38 C.F.R. § 21.9635(o) for exhaustion of entitlement when an individual enrolled in an institution of higher learning that regularly operates on the quarter or semester system exhausts his or her entitlement under 38 U.S.C. Chapter 33, the effective discontinuance date will be the last day of the quarter or semester in which the entitlement is exhausted. The pertinent facts in this case show that the Veteran made an irrevocable election in July 2014 to receive benefits under the Post-9/11 GI Bill (Chapter 33) in lieu of benefits under the Montgomery GI Bill Active-Duty program (Chapter 30). She said that she made this election after VA personnel informed her that she was entitled to 12 additional months of benefits under Chapter 33 once she exhausted her benefits under Chapter 30. She specified on the application that she wanted her Chapter 33 benefits to become effective when her Chapter 30 benefits had been completely exhausted. In 2014 the Veteran enrolled in a culinary program at the Art Institute of Atlanta in pursuit of an Associate of Arts in Baking and Pastry. The program operates on a quarterly basis. The Veteran asserts that four weeks into the program the school notified her about payment. She said that she contacted VA and learned that she had exhausted her education benefits. The AOJ explained in the May 2015 determination that the Veteran had previously used 9 months and 25 days of benefits under the Montgomery GI Bill (MGIB) - Selected Reserve program (10 U.S.C. Chapter 1606), and 36 months of benefits under the MGIB - Active-Duty program (38 U.S.C. Chapter 30), leaving 2 months and 5 days entitlement remaining under Chapter 33. The Veteran does not dispute this, but she contends that had she been timely informed that she had exhausted her education benefits prior to the start of the quarter she never would have enrolled in the school in the first place and would not have incurred education expenses that she is not financially able to pay for. She asserts that VA erred by informing her that she was entitled to 12 months of Chapter 33 benefits. She reported that she had to drop out of the program after the second quarter. After reviewing the record in its entirety the Board finds that additional development is required before the matter can be fully resolved. This is due to the uncertainty regarding what quarter the Veteran received Chapter 33 VA education benefits for and what quarter she seeks additional benefits for. In this regard, school enrollment certification forms (VA Forms 20-1999 and 20-1999b) show that the Veteran initially enrolled in the culinary arts program for the quarter from July 2014 to September 2014, but she withdrew her enrollment prior to the first day of classes. The VA Form 20-1999b dated in July 2014 shows a $0 balance for this quarter and notes that there were multiple pending issues regarding Chapters 30, 33 and 1606. The forms also show that the Veteran reenrolled in the program and attended quarters from October 6, 2014, to December 20, 2014, and January 12, 2015, to March 28, 2015. The initial enrollment form for the October 2014 to December 2014 quarter, dated in September 2014, shows an amount due of $5,145 and notes that the Veteran's entitlement was exhausted. See VA Form 20-1999 dated September 12, 2014. However, a notice of change in student status form (VA Form 20-1999b) issued on September 24, 2014, for this quarter shows an amount due of $7,089 and notes that the Veteran had an "open Chapter 33 end product...in progress". In the notice of disagreement (NOD) in May 2015, and the substantive appeal in November 2015, the Veteran indicated that she was seeking benefits for the "fall semester". Notably, she testified in March 2022 that she had no issues with the first semester and that she was seeking benefits for the second semester. The September 2015 statement of the case shows that benefits were paid up to the date that her entitlement exhausted, in September 2014. However, as noted, school enrollment certifications show that she withdrew from the July 2014 to September 2014 quarter prior to the first day of classes. See VA Form 22-1999b dated September 1, 2014. A billing statement from the Art Institute of Atlanta for the period from October 2, 2014, to November 1, 2014, is on file, but the statement contains a previous balance and does not breakdown the charges. Also, during the pendency of this appeal, in June 2020, a new precedential opinion was issued by the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Carr v. Wilkie, 961 F.3d 1168, 1176 (Fed. Cir. 2020). Prior to the holding in Carr, in which the Federal Circuit reversed the interpretation made by the United States Court of Appeals for Veterans Claims that 38 U.S.C. § 3695 prevented a claimant from receiving benefits in excess of 48 months, a veteran was only able to utilize the exception under 38 C.F.R. § 21.9635(o) if he or she did not reach the 48-month cap on receipt of benefits under two or more programs. See Carr v. Wilkie, 961 F.3d 1168, 1176 (Fed. Cir. 2020), rev'g 31 Vet. App. 128 (2019). However, in Carr, the Federal Circuit interpreted the phrase "may receive" as referring not to the amount of benefits a person may receive, but as a baseline limit on entitlement to benefits when combined under more than one chapter. See id. Thus, under such a reading, a veteran may receive benefits exceeding 48 months, notwithstanding section 3695's express prohibition. Put another way, the Federal Circuit's interpretation of 38 U.S.C. § 3695 is no longer a bar to the Veteran receiving the benefits under the exception of 38 C.F.R. § 21.9635(o). In consideration of the foregoing, this case must be remanded to obtain clarification regarding the periods that VA paid Chapter 33 benefits for the Veteran's enrollment at the Art Institute of Atlanta and the date that the benefits were discontinued, as well as for the AOJ's initial consideration of the applicability of the holding in Carr, 961 F. ed at 1176. Lastly, the AOJ should ensure that the Veteran's education file is complete. This is in view of the Veteran's assertion that she initially filed a NOD in November 2014 which the AOJ did not acknowledge receiving until May 2015, despite the fact that a partial copy of this form on file is date stamped by the AOJ in November 2014. It is also in view of the fact that the Veteran indicated in the May 2015 NOD that she was appealing an "October 2014" determination. Accordingly, the matter is REMANDED for the following action: 1. Ensure that the Veteran's education file is complete, to include any notices sent to the Veteran in October 2014 as well as a VA Form 9 filed by the Veteran in November 2014. 2. Clarify for the record the period(s) of enrollment that VA paid Chapter 33 education benefits for the Veteran to attend the Art Institute of Atlanta and the date that the benefits were discontinued; if appropriate, contact the school for verification of payments and/or terms enrolled. 3. After completing the above, and any other development as may be indicated, readjudicate the issue on appeal to include consideration of the Court's holding in Carr v. Wilkie, 961 F.3d 1168, 1176 (Fed. Cir. 2020), which held that a veteran may receive benefits exceeding 48 months, notwithstanding 38 U.S.C. § 3695, if a veteran qualified for an exception, including the extension of benefits until the end of the school term under 38 U.S.C. § 3031(f) and/or 38 C.F.R. § 21.9635(o). If any benefit sought on appeal remains denied, provide the Veteran with a supplemental statement of the case and afford her a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. H.M. Walker 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.