Citation Nr: A25035138 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 230621-356697 DATE: April 16, 2025 ORDER The appeal of entitlement to an extension of the delimiting date beyond April 13, 2017, for educational assistance benefits under Chapter 33 of Title 38 of the United States Code (Chapter 33 or the Post-9/11 GI Bill) is dismissed. FINDINGS OF FACT The June 21, 2023, VA Form 10182, notice of disagreement (NOD), was received more than one year from the date of mailing of the May 24, 2022, agency of original jurisdiction (AOJ) decision being appealed. CONCLUSIONS OF LAW The criteria for dismissal of the appeal of entitlement to an extension of the delimiting date beyond April 13, 2017, for educational assistance benefits under Chapter 33 are met. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.2500, 20.202, 20.301. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 2001 to April 2002. In the June 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the May 2021 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. The educational assistance program under the Post-9/11 GI Bill was established for "individuals who served on active duty after September 10, 2001" and was made effective in August 2009. 38 C.F.R. § 21.9500. Eligibility for this benefit is based on certain qualifying periods and types of active duty. See 38 U.S.C. §§ 3301 -3324; see also 38 C.F.R. § 21.9520. The individual must have served a minimum of 90 aggregate days of active duty excluding active duty for entry level and skill training and, after completion of such service, (1) continued on active duty; (2) was discharged from service with an honorable discharge; (3) was released from service characterized as honorable and placed on the retired list, temporary disability retired list, or transferred to the Fleet Reserve or the Fleet Marine Corps Reserve; (4) was released from service characterized as honorable for further service in a reserve component; or (5) was discharged or released from service for a medical condition that preexisted such service and is not determined to be service connected; hardship, as determined by the Secretary of the military department concerned; or a physical or mental condition that interfered with the individual's performance of duty but was not characterized as a disability and did not result from the individual's own misconduct. 38 U.S.C. § 3311; 38 C.F.R. § 21.9520(a). Alternatively, the individual must have served a minimum of 30 continuous days on active duty and, after completion of such service, was discharged or released from active duty under other than dishonorable conditions due to a service-connected disability. 38 U.S.C. § 3311; 38 C.F.R. § 21.9520(b). Pursuant to 38 U.S.C. § 3301(1)(A), qualifying active duty for members of the regular components of the Armed Forces is full-time duty other than active duty for training (ACDUTRA). 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 section 688, 12301(a), 12301(d), 12301(g), 12302, or 12304 of title 10 or section 712 of title 14. See 38 U.S.C. § 3301(1)(B). For members of the Army National Guard of the United States or the Air National Guard of the United States, in addition to service described above for members of the regular and reserve components of the Armed Forces, qualifying active duty includes full-time service (i) in the National Guard of a State for the purpose of organizing, administering, recruiting, instructing, or training the National Guard; or (ii) 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. See 38 U.S.C. § 3301(1)(C). However, any period of active duty during which an individual served as a cadet or midshipman at one of the service academies is not considered active duty on which an individual's entitlement to educational assistance is based. 38 U.S.C. § 3002(6)(d). The following periods of service also shall not be considered a part of the period of active duty on which an individual's entitlement to educational assistance is based: (1) A period of service on active duty of an officer pursuant to an agreement under section 2107(b) of title 10; (2) A period of service on active duty of an officer pursuant to an agreement under section 4348, 6959, or 9348 of title 10 or section 182 of title 14; (3) A period of service that is terminated because of a defective enlistment and induction based on (A) the individual's being a minor for purposes of service in the Armed Forces; (B) an erroneous enlistment or induction; or (C) a defective enlistment agreement. 38 U.S.C. § 3311(d). The law provides that, in the case of a veteran whose last discharge or release from active duty was before January 1, 2013, the period of eligibility for educational assistance terminates 15 years from (i) the date of his/her last discharge or (ii) the date of his/her release from a period active duty of at least 90 continuous days (or 30 continuous days if the veteran is released for a service-connected disability). 38 U.S.C. § 3321; 38 C.F.R. § 21.9530. In this case, the Veteran was discharged from service on April 12, 2002, and thus, his delimiting date is April 13, 2017. The Veteran first applied for educational assistance benefits under Chapter 33 on May 16, 2017. On June 28, 2017, the AOJ issued a denial for educational assistance benefits, which stated that the basis for the denial was that the Veteran had "insufficient qualifying active-duty service after September 10, 2001." The Veteran did not timely appeal this decision and thus, it is final. On May 4, 2021, the Veteran submitted a new application for education benefits. In May 2021, the AOJ denied entitlement to education benefits due to insufficient qualifying active-duty service pursuant to information received from the Department of Defense (DoD). Specifically, DoD found that the Veteran had 65 days of qualifying active-duty service, which was less than the required 90 aggregate days of active-duty service. On April 18, 2022, the Veteran requested a higher-level review of the May 2021 denial. On May 24, 2022, the AOJ denied the Veteran's claim again on the basis that the Veteran's eligibility for educational assistance terminated on April 13, 2017, 15 years after his discharge from active-duty service. In that same denial, the AOJ noted the DoD had found that the Veteran had more than 90 days of qualifying active-duty service. The decision also noted that the Veteran's eligibility for educational assistance benefits terminated in April 2017, which was prior to the date the Veteran initially applied for education benefits. In June 2023, the Veteran filed a VA Form 10182 to appeal the May 2022 denial to the Board. As explained below, the matter is dismissed. The appeal of entitlement to an extension of the delimiting date beyond April 13, 2017, for educational assistance benefits under Chapter 33 is dismissed. A May 24, 2022, decision denied entitlement to educational benefits. Specifically, it found that the Veteran had eligible dates of service but that his delimiting date was April 13, 2017, and the Veteran applied for educational assistance after that date. Reading the denial liberally, the Board interprets this decision as a denial of the extension of the delimiting date beyond April 13, 2017, for educational assistance benefits under Chapter 33. On June 21, 2023, the Board received a VA Form 10182, wherein the Veteran indicated that he sought Board review of the June 2017 decision which denied entitlement to education benefits due to insufficient active-duty service after September 10, 2001. See VA Form 10182 (June 2023). The Board concludes that due to a claims processing rules defect, the issue of entitlement to educational benefits, and by extension, an extension of the delimiting date beyond April 13, 2017, for educational assistance benefits under Chapter 33 is dismissed. Hall v. McDonough, 34 Vet. App. 329 (2021). VA regulations under the AMA require that a completed VA Form 10182 be received within one year from the date that the AOJ mailed the notice of the decision being appealed. The date of the mailing of the letter of notification of the decision is to be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 C.F.R. § 20.203(b). Here, the June 2023 VA Form 10182 identified the June 2017 decision; however, the Board believes that the Veteran was appealing the most recent May 2022 decision. Unfortunately, the VA Form 10182 was received more than one year from the date of the mailing of the letter of notification of the decision, May 24, 2022. Therefore, the Board finds that, as proper claims processing rules have not been followed, the issue of entitlement to an extension of the delimiting date beyond April 13, 2017, for educational assistance benefits under Chapter 33 is dismissed. Next, the Board finds that the requirements of 38 C.F.R. § 20.104(c) are not applicable. The regulation provides that notice and the opportunity to present evidence and argument, including the opportunity for a hearing, must be provided to all parties when the Board raises a question as to a "potential" jurisdictional defect. However, § 20.104(c) pertains to "jurisdictional authority" and not to "claims processing rules" defects. Nevertheless, even if § 20.104(c) was to apply, there is no question as to a "potential" jurisdictional defect, rather an actual and evident defect on the face of the record. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of law is not warranted when adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran). Lastly, the Board is conscious that recent caselaw has drawn a distinction between jurisdiction and the legal and regulatory requirements necessary to begin an appeal and receive appellate review ("claims processing rules"). See, e.g., Hall, 34 Vet. App. 329. To the extent that this recent caselaw calls into question whether this matter is properly dismissed, the Board finds that VA regulations and the laws from which they are derived clearly state that the Board may not review applications for appeal unless they meet the legal criteria. See 38 U.S.C. § 7108 ("An application for review on appeal shall not be entertained unless it is in conformity with this chapter."); see also 38 U.S.C. 7105(a)-(b) (appellate review shall be initiated by the filing of a NOD in the form prescribed by the Secretary and a NOD shall be filed within one year from the date of the mailing of the notice of the decision). Those criteria require that a NOD identify the decision with which the claimant disagrees and be submitted within one year from the date of mailing. Because the June 2023 NOD identifies a decision that was issued over a year prior to that, this NOD cannot meet the legal and regulatory criteria for review of this claim by the Board. Therefore, the application for appeal as to this issue is not in conformity with the legal requirements for an application for appeal. 38 U.S.C. § 7108. Accordingly, the Board must dismiss this claim, as the law precludes the Board from entertaining such a defective application for review on appeal. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Schmidt 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.