Citation Nr: 23027232 Decision Date: 05/08/23 Archive Date: 05/08/23 DOCKET NO. 16-44 579 DATE: May 8, 2023 REMANDED Entitlement to additional Department of Veterans Affairs (VA) educational assistance benefits under Title 38, United States Code, Chapters 30 and/or 33, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 2001 to August 2005. He returned to active-duty military service in September 2009. Procedural History This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of VA's Veterans Benefits Administration (VBA), which denied entitlement to additional education assistance benefits under Chapter 33. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in January 2023. A transcript of that hearing has been associated with the record. Applicable Law The Post-9/11 GI Bill, 38 U.S.C. Chapter 33, provides for VA educational assistance for members of the Armed Forces based on active-duty service after September 10, 2001. 38 U.S.C. § 3311; 38 C.F.R. § 21.9520. The Post-9/11 GI Bill was intended by Congress to be an expansion of VA educational assistance, compared with the immediately preceding programs. Generally, veterans are eligible for a total of 36 months of education benefits under Chapter 30 or the Post-9/11 GI Bill. A veteran who has exhausted his or her entitlement under Chapter 30, however, may obtain an additional 12 months of entitlement under the Post-9/11 GI Bill once basic eligibility is established. To receive benefits under the Post 9/11 GI Bill in lieu of Chapter 30, an irrevocable election must be made. If Chapter 30 benefits have not been exhausted, or used at all, a veteran who irrevocably elects the Post-9/11 GI Bill benefits is limited to 36 months of total entitlement to education benefits. 38 C.F.R. §§ 21.4020, 21.7072, 21.9520, 21.9550. An individual may make an irrevocable election to receive benefits under Chapter 33 by properly completing a VA Form 22-1990, submitting a transfer-of-entitlement designation under this chapter to the Department of Defense (DoD), or submitting a written statement that includes the following: (i) identification information (including name, social security number, and address); (ii) if applicable, an election to receive benefits under Chapter 33 in lieu of benefits under, e.g., the Montgomery GI Bill (MGIB); (iii) the date the individual wants the election to be effective; and (iv) an acknowledgement that the election is irrevocable (e.g., "I understand that my election is irrevocable and may not be changed."). 38 C.F.R. § 21.9520(c)(2). An individual who is entitled to educational assistance under 38 U.S.C. Chapter 33 based on his or her own active-duty service, and who is approved by a service department to transfer entitlement, may transfer up to a total of 36 months of his or her entitlement to a dependent (or among dependents). 38 U.S.C. § 3319; 38 C.F.R. § 21.9570. VA will pay these transfer of entitlement (TOE) benefits to the dependent and/or the dependent's institution of higher learning if the dependent is using transferred entitlement to pursue and complete the requirements of a secondary school diploma or equivalency certificate the amounts of educational assistance payable under 38 U.S.C. Chapter 33 in the same manner and at the same rate as if the transferor were enrolled in the dependent's program of education. The Board notes that the merging and interplay of 38 C.F.R. §§ 21.4020, 21.7072, 21.9520, and 21.9550 dictates that if a veteran converts his or her Chapter 30 entitlement to the Post-9/11 GI Bill benefits, that veteran receives only the amount of time remaining on the Chapter 30 entitlement. If, however, a veteran continues to use Chapter 30 entitlement until it is exhausted, and then applies for Chapter 33 benefits, he or she may be eligible for an additional 12 months of entitlement under the Post-9/11 GI Bill. Specific Reasons for Remand Here, the Veteran was originally awarded 36 months of full-time MGIB benefits to use towards his undergraduate education. See August 16, 2005, Certificate of Eligibility. In April 2016, VA received the Veteran's application for Post 9/11 GI Bill benefits. On April 25, 2016, VBA issued a Certificate of Eligibility reflecting that the Veteran had 0 months and 14 days of full-time education benefits remaining and that he had "transferred 12 months to C.G. (his wife)." VBA received a follow-up inquiry from the Veteran on May 2, 2016, and on May 3, 2016, VBA issued a corrected Certificate of Eligibility indicating that the Veteran had 0 months and 0 days of remaining full-time education benefits because he had transferred 0 months and 14 days of his entitlement to his dependent (his wife). VBA received another inquiry from the Veteran on May 24, 2016. In a June 8, 2016, administrative decision letter, VBA informed the Veteran that "After investigating your file, we found that you relinquished the remainder of your entitlement (0 months, 14 days) on July 1, 2011, when you transferred the remainder of that benefit to your dependent (wife)." On June 28, 2016, VBA received the Veteran's notice of disagreement (NOD). On June 30, 2016, VBA issued a statement of the case (SOC), which continued to deny the claim on the basis that, after using 35 months and 16 days of MGIB benefits to complete his bachelor's degree, the Veteran transferred the remainder of his MGIB benefits (14 days) to his dependent (his wife) on July 1, 2011. VBA found that this transfer of entitlement (TOE) constituted an irrevocable election whereby the Veteran relinquished the remainder of his MGIB benefits to receive those benefits or have the ability to transfer educational assistance benefits under the Post-9/11 GI Bill. VBA further determined that, even if he was told otherwise, because the Veteran had not exhausted his MGIB benefits when he initiated the transfer of benefits to his wife, he was not entitled to an additional 12 months of benefits under the Post-9/11 GI Bill. The Veteran filed a substantive appeal to the Board (VA Form 9) in September 2016. Unfortunately, additional evidentiary development must be completed before the Board can address the underlying merits of the Veteran's claim. For example, the at his January 2023 Board hearing, the Veteran indicated that he had returned to active-duty service in September 2009. However, his service records for this period of active-duty service have not been associated with the claims file. Likewise, he mentioned that he could submit an officer record brief addressing the date of his commissioning (in response to the undersigned's request for any ROTC contract that he signed). However, the record was held open for 30 days, but no additional information was ever submitted. Additionally, in his June 2016 NOD, his September VA Form 9, and during his January 2023 Board hearing, the Veteran asserted that he would not have "transferred" the remaining 0 months and 14 days of Chapter 30 (MGIB) benefits to Chapter 33 (Post-9/11 GI Bill). Rather, the Veteran contends that he did not initiate a transfer and that he intended to exhaust his remaining 14-days of MGIB benefits to reimburse himself for the expenses associated with taking the Graduate Management Admission Test. Despite VBA referencing a TOE that occurred on July 1, 2011, there are not documents in the record that show that the Veteran transferred the remaining 14-days of MGIB benefits to his wife. Lastly, at his January 2023 Board hearing, the Veteran stated, "[I]nitially when I had requested the Post-9/11 transfer, it was like one simultaneous thing. I received a letter back from the VA that said hey, you actually have 14-days of Chapter 30 left." However, there are no VA letters in the record from 2011 demonstrating that the Veteran was notified or made aware that he had 14-days of benefits until he applied for Post-9/11 GI Bill benefits in 2016. To ensure that the record is complete, VBA must take appropriate action to verify that the Veteran's entire education file has been uploaded to the electronic claims file. More importantly, VBA must take appropriate action to obtain the Veteran's updated service records, documentation from DoD pertaining to the TOE from the Veteran to his wife on July 1, 2011 (approved by DoD on July 5, 2011), any notice letters that were sent to the Veteran pertaining to his education benefits prior to April 2016 when he applied for Post-9/11 GI Bill benefits, and any other documents that the Veteran believes will substantiate his claim on appeal. This matter is REMANDED for the following actions: 1. Contact the Veteran and request that he submit the following: a. Any documentation in the Veteran's possession addressing the date of his commissioning. At the Veteran's January 2023 Board hearing, the Veteran suggested that he may be able to obtain and submit such documentation (in response to the VLJ's request for any ROTC contract that he signed). b. A copy of the letter that the Veteran received from VBA in response to his transfer request as referenced at the hearing. c. A copy of any service records in the Veteran's possession for his period of active-duty service beginning in September 2009. d. Any evidence in the Veteran's possession demonstrating that he did not transfer his remaining MGIB benefits to his wife or that he revoked the transfer of those benefits after July 1, 2011. 2. VBA should contact any appropriate source to obtain the Veteran's complete service department/personnel records for his period of active-duty service that began in September 2009. These records should also be uploaded to the claims file. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Ensure that the Veteran's VA education records are associated with his electronic claims file in their entirety, including any notice letters or documents from 2011 to April 2016, reflecting the Veteran's TOE to his wife on July 1, 2011, and any remaining balance of educational benefits following that transfer. Contact all appropriate sources (including DoD) to obtain any available documentation regarding the transfer of 14 days of MGIB entitlement from the Veteran to his spouse. Of specific interest is signed documentation in July 2011 establishing the Veteran's transfer of his remaining 14 days of MGIB entitlement to his wife, or that such transfer was approved by DoD. If a copy of the physical document cannot be located, DoD must provide a computer printout of its electronic record of the transfer or other verification demonstrating that the transfer was approved. If neither can be produced, DoD should provide a detailed explanation as to how TOE requests are documented and processed. All attempts to obtain the requested documentation must be memorialized for the record. 4. Readjudicate the claim on appeal. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael L. Marcum, 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. .