Citation Nr: A25041251 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 230407-339952 DATE: May 6, 2025 ORDER The appeal as to the issue of entitlement to 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. FINDING OF FACT The April 7, 2023, VA Form 10182, notice of disagreement (NOD), was received more than one year from the date of mailing of the September 14, 2021, agency of original jurisdiction (AOJ) decision letter by the VA Muskogee Regional Office (RO). CONCLUSION OF LAW The criteria for dismissal of the appeal of entitlement to educational assistance benefits under Chapter 33, Title 38, United States Code are met. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.2500, 20.202, 20.301. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2013 to June 2017 and was discharged under other than honorable conditions. A decision was issued on September 14, 2021. The Appeals Modernization Act (AMA) automatically applies to all claims for which the Department of Veterans Affairs (VA) issues notice of an initial decision on or after February 19, 2019. See 38 C.F.R. § 3.2400 (a)(1). On the April 7, 2023, VA Form 10182, Decision Review Request: Board Appeal (NOD), the Veteran identified a November 26, 2022, decision and the issue as "Post 9/11 GI Bill Area of Disagreement: service connection, effective date, disability evaluation, I am entitled to this benefit." He elected the Direct Review docket. As explained below, the matter is dismissed. The appeal of entitlement to educational assistance benefits under Chapter 33, Title 38, United States Code, is dismissed. A September 14, 2021, decision letter found that the Veteran did not qualify for the Post-9/11 GI Bill as he did not receive an honorable discharge and had insufficient qualifying active duty service after September 10, 2001. On April 7, 2023, the Board received a VA Form 10182, wherein the Veteran indicated that he sought benefits under the Post-9/11 GI Bill. See VA Form 10182 (April 2023). The Board notes that the Veteran stated that he was appealing a decision dated November 26, 2022. After extensive review of the file, the Board was unable to find a decision dated November 26, 2022. The closest decision the Board could find to that date was a grant of education benefits under the Veteran Rapid Retraining Assistance Program (VRRAP) dated November 30, 2021. As that did not involve Post-9/11 GI Bill benefits, the Board will presume that the September 2021 denial of Post-9/11 GI Bill education benefits is the decision that the Veteran is appealing. The Board concludes that due to a claims processing rules defect, the issue of entitlement to 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 April 2023 VA Form 10182 identified a November 26, 2022, decision, regarding Post-9/11 GI Bill benefits. The Board believes this refers to the appeal of the Post-9/11 GI Bill benefits decision dated September 14, 2021; thus, the VA Form 10182 was received more than one year from the date of the mailing of the letter of notification of the decision, September 14, 2021. The Board notes that the VA Form 10182 was also received more than one year from the date of the mailing of the letter of notification of the VRRAP decision, November 30, 2021. Therefore, the Board finds that, as proper claims processing rules have not been followed, the issue of entitlement to educational assistance benefits under Chapter 33 is dismissed. In addition, 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). 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 April 2023 NOD is regarding 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. 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.