Citation Nr: A25035783 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 210721-244336 DATE: April 17, 2025 REMANDED Entitlement to basic eligibility for educational assistance benefits under Chapter 1606, Title 10, of the United States Code (known as the Montgomery GI Bill for Selected Reserves) (MGIB-SR) is remanded. REASONS FOR REMAND The appellant served in the Army National Guard. The decision on appeal was issued in April 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the July 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Appellant elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the April 2021 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the appellant with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. However, because the Board is remanding the claim on appeal, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103 (c)(2)(ii).] Entitlement to basic eligibility for educational assistance benefits under Chapter 1606, Title 10, of the United States Code (MGIB-SR) is remanded. The appellant applied for education assistance under Chapter 1606 of the MGIB-SR and contends she is eligible for benefits. MGIB-SR educational assistance benefits are governed by 10 U.S.C. Chapter 1606. This program is an educational assistance program for members of the Selected Reserve of the Army, Navy, Air Force, Marine Corps, and Coast Guard, as well as the Army and Air National Guard. The Reserve components decide who is eligible for the program, and VA makes the payments for the program. VA regulations provide that a determination of individual's eligibility for MGIB-SR benefits is to be made by the Armed Forces, not by VA. 10 U.S.C. § 16132, 38 C.F.R. § 21.7540 (a). In accordance with 10 U.S.C. Chapter 1606, for a member of the Selected Reserve to be eligible for Chapter 1606 benefits, the reservist (1) shall (i) enlist, reenlist, or extend an enlistment as a Reserve for service in the Selected Reserve so that the total period of obligated service is at least six years from the date of such enlistment, reenlistment, or extension; or (ii) be appointed as, or be serving as, a Reserve Officer and agree to serve in the Selected Reserve for a period of not less than six years in addition to any other period of obligated service in the Selected Reserve to which the person may be subject; (2) must complete his or her initial period of active service duty for training; (3) must be participating satisfactorily in the Selected Reserve; and (4) must not have elected to have his or her service in the Selected Reserve credited toward establishing eligibility to benefits provided under 38 U.S.C. Chapter 30. 10 U.S.C. § 16132 (a); 38 C.F.R. § 21.7540 (a). In other words, Chapter 1606 benefits are available to veterans who enlisted in the Selected Reserve for six years or more after June 30, 1985, or who served as Reserve Officers in the Selected Reserve for not less than six years in addition to any other obligation. 10 U.S.C. § 16132; 38 C.F.R. § 21.7540. Here, the April 2021 decision does not state specifically why the appellant was not eligible for Chapter 1606 benefits, only that VA has "not received official notice from a service department" that the Appellant is a member of the National Guard who is currently eligible for Chapter 1606. An April 2021 Information Report shows that the Appellant's service in the National Guard was ineligible because she did not complete secondary school or the equivalent. The Appellant's VA Form 10182 and additional documents in the claims file also suggest that the Appellant was denied for Chapter 1606 benefits because DOD records purportedly show that the Appellant did not complete a period of Inactive Duty for Training (IADT). The Appellant stated in her VA Form 10182 that she was issued a DD-214 showing that she had completed required training. However, the DD-214 is not of record. It is unclear if VA obtained all of the Appellant's Service Personnel records, or what other efforts were taken to verify the Appellant's eligibility for Chapter 1606 benefits. Additionally, the Board finds remand is warranted to satisfy a statutory duty under 38 U.S.C. § 5104. 38 C.F.R. §20.802(a) (the Board may remand for correction of any error by the AOJ in satisfying a regulatory or statutory duty if correction of the error would have a reasonable possibility of aiding in substantiating the claim). Generally, notice under 38 U.S.C. § 5104 must include the following: 1. Identification of the issues adjudicated. 2. A summary of the evidence considered by the Secretary. 3. A summary of the applicable laws and regulations. 4. Identification of findings favorable to the claimant. 5. In the case of a denial, identification of elements not satisfied leading to the denial. 6. An explanation of how to obtain or access evidence used in making the decision. 7. If applicable, identification of the criteria that must be satisfied to grant service connection or the next higher level of compensation. 38 U.S.C. § 5104 (b). The decision on appeal do not comply with the requirements of 38 U.S.C. § 5104 (b). Without adequate notice of the basis for the denial, claimants cannot make an informed decision as to whether or not to accept or appeal the decision nor can they know what evidence to submit in order to substantiate the appeal. See Ingram v. Nicholson, 21 Vet. App. 232, 252 (2007) (discussing the legislative history of 38 U.S.C. § 5104 and the importance of clear and informative notice of decisions). Moreover, the Board cannot meaningfully review the AOJ's determination, especially in light of the fact that the Appellant disputes the nature and length of her service. On remand, the AOJ must associate with the record copies of all communications with the Appellant and documents received from the Department of Defense which were relied upon to support the conclusion that the Appellant was not entitled to Chapter 1606 benefits. In addition, the AOJ must provide complete notice of the decisions on appeal as required by 38 U.S.C. § 5104, to include citation to any internal guidance or other authority relied upon to support the conclusion that the Appellant was not entitled to Chapter 1606 benefits. The matters are REMANDED for the following action: 1. Obtain the Appellant's complete service personnel records, including specifically all records pertaining to the dates, nature, and extent of her service, to include any DD-214 or equivalent. 2. Contact the Department of Defense (DoD) and/or the appropriate military authority to again verify the appellant's eligibility for education benefits. Provide a copy of any relevant records obtained on behalf of the Appellant, to include any DD-214 or equivalent. Instruct DoD to determine whether the Appellant is eligible for Chapter 1606 benefits based on his service. Notify DoD that, if it determines she is not eligible for Chapter 1606 benefits, there should be a thorough explanation of the determination. Ask DoD to provide copies for the Appellant's VA record of any information in its possession used to make this determination. 3. Associate with the record all documents received from the DoD which were relied upon to determine that the Appellant is not entitled to Chapter 1606 benefits. (Continued on the next page) ? 4. If necessary, take steps to verify that the Appellant earned a secondary school diploma or equivalent. 5. After completing this development, readjudicate the Appellant's claim for entitlement to Chapter 1606 benefits, an provide a notice of decision as described in 38 U.S.C. §5104 (b). The notice shall include but is not limited to: a summary of the evidence; a summary of the applicable laws and regulations, to include citation to any internal guidance or other authority relied upon to support the conclusion that the Appellant is not eligible for Chapter 1606 benefits; identification of findings favorable to the claimant; and identification of elements not satisfied leading to the denial (if the claim should remain denied). Melanie J. Mann Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Boal, Alan 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.