Citation Nr: 25009045 Decision Date: 07/10/25 Archive Date: 07/10/25 DOCKET NO. 200220-66408 DATE: July 10, 2025 ORDER The claim of entitlement to additional Department of Veterans Affairs (VA) educational assistance benefits, in excess of 27 days as of January 30, 2020, under Chapter 33, Title 38, United States Code (known as Chapter 33 or the Post-9/11 GI Bill), is denied. FINDING OF FACT The Veteran was awarded a total of 48 months of VA educational assistance benefits under two or more education programs and, as of January 30, 2020, had used all but 27 days of entitlement. CONCLUSION OF LAW The Veteran has no legal entitlement to additional VA educational assistance benefits greater than 27 days, as of January 30, 2020, under Chapter 33. 38 U.S.C. §§ 3231, 3301, 3312, 3695; 38 C.F.R. §§ 21.4020, 21.5071, 21.5072, 21.9520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy Reserve from September 2000 to January 2011. He then served in the United States Army National Guard, which service included periods of active duty for training from March 9 to October 7, 2003, from April 3 to August 1, 2007, and from July 5 to November 18, 2009, and periods of active duty from March 2004 to August 2005, and from June 2010 to November 2011. This appeal to the Board of Veterans' Appeals (Board) arose from a January 30, 2020, decision of a Department of Veterans Affairs (VA) Regional Office (RO) that implemented a January 2020 Board decision granting entitlement to Post-9/11 GI Bill benefits payable at the 100 percent rate. In doing so, the RO informed the Veteran that he had 0 months and 27 days of entitlement remaining under the Post-9/11 GI Bill On February 20, 2020, the Veteran filed a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement (NOD)) in which he identified the January 2020 decision and elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the January 2020 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 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. Supplemental Decision As an initial matter, the Board notes that in June 2020, the Board remanded the issue of entitlement to retroactive Post-9/11 GI Bill benefits in excess of $3,138.58. Unfortunately, the issue of entitlement to additional Post-9/11 GI Bill benefits, in excess of 27 days, was inadvertently omitted from the June 2020 Board remand. The Board has statutory authority to correct obvious errors in the record and possesses five methods by which to correct error: reconsideration, revision based on clear and unmistakable error, corrected orders, supplemental decisions, and vacatur. 38 C.F.R. §§20.904, 20.1000-1001, 20.1102, 20.1400-1411. Upon review of the record, the Board has determined that the proper remedy for omitting the issue of entitlement to additional Post-9/11 GI Bill benefits, in excess of 27 days, from the June 2020 remand is to now adjudicate the issue in a supplemental decision. Relevant to the instant appeal, the record shows that the Veteran initially applied for VA educational assistance benefits under Chapter 1606, Title 10, of the United States Code (known as the Montgomery GI Bill for Selected Reserves (MGIB-SR)). He then elected to received benefits under Chapter 1607, Title 10, of the United States Code (the Reserve Education Assistance Program (REAP)). His original entitlement was noted to be 36 months. The Veteran then used Chapter 1607 benefits to attend an undergraduate program of education at Virginia Western Community College from January 2007 to May 2009. A "Chapter 1607 Education Award" printout shows that, as of January 27, 2009, he had 21 months of 14 days of entitlement remaining. The record then shows that the Veteran applied for Chapter 33 benefits, stating that he was opting to receive those benefits in lieu of receiving benefits under Chapter 1606, effective December 2, 2009. In February 2010, the RO issued a "Certificate of Eligibility" certifying that the Veteran was entitled to benefits for an approved program of education or training under the Post-9/11 GI Bill. The Veteran was informed that he had 33 months and 14 days of full time benefits remaining. A Chapter 33 eligibility calculator shows that the Veteran's Post-9/11 GI Bill entitlement was calculated after consideration of his use of 14 months and 16 days of entitlement used under Chapter 1607. The Veteran then used Post-9/11 GI Bill benefits for a program of education at Virginia Commonwealth University (VCU) during the period from July 2011 to December 2013 and for a program of education at the University of Virginia (UVA) during the period from August 2015 through February 2017. The record shows that, as of the completion of the Veteran's schooling at UVA, he had 27 days of entitlement remaining under the Post-9/11 GI Bill. As discussed above, in January 2020 the RO implemented a January 2020 Board decision granting entitlement to Post-9/11 GI Bill benefits payable at the 100 percent rate. In doing so, the RO informed the Veteran that he had 0 months and 27 days of entitlement remaining under the Post-9/11 GI Bill. In disagreeing with the RO's calculation that he had only 27 days of entitlement remaining, the Veteran argued, in his February 2020 VA Form 10182, that his remaining entitlement should have been recalculated in light of the holding in BO v. Wilkie, 31 Vet. App. 321, 324 (2019). Relevant to the issue currently before the Board, laws administered by VA provide a limit on training under two or more programs. Specifically, the aggregate period for which any person may receive assistance under two or more of the following laws may not exceed 48 months (or the part-time equivalent): (1) Part VII or VIII, Veterans Regulations numbered 1(a), as amended; (2) Title II of the Veterans' Readjustment Assistance Act of 1952; (3) The War Orphans' Educational Assistance Act of 1956; (4) 38 U.S.C. Chapters 30, 32, 33, 34, and 36; (5) 10 U.S.C. Chapters 106a, 1606, and 1607; (6) Section 903 of the Department of Defense Authorization Act, 1981; (7) The Hostage Relief Act of 1980; and (8) The Omnibus Diplomatic Security and Antiterrorism Act of 1986. 38 U.S.C. § 3695(a); 38 C.F.R. § 21.4020(a). Here, the Veteran has been awarded up to the maximum 48 months of benefits allowable under two or more programs. As discussed above, the Veteran used 14 months and 16 days of entitlement under Chapter 1607. He then was awarded 33 months and 14 days of entitlement under Chapter 33. This amounts to a total of 48 months of VA educational assistance benefits that the Veteran had available for his own use. Of those 48 months, the Veteran used all but 27 days as of the January 30, 2020, decision on appeal. Notably, the Veteran does not disagree with the RO's determination that he used 14 months and 16 days of entitlement under Chapter 1607, or that he used all but 27 days of the 33 months and 14 days of entitlement under Chapter 33. The record also does not suggest that the RO miscalculated the Veteran's use of Chapter 1607 and Chapter 33 benefits. Rather, the Veteran believes that he is entitled to additional VA educational assistance benefits pursuant to BO, supra. As to whether application of BO and subsequent caselaw would allow for additional VA educational assistance benefits in this case, the Board point out that, under governing law, an eligible individual is entitled to a maximum of 36 months of educational assistance (or its equivalent in part-time educational assistance) under the Post-9/11 GI Bill. See 38 C.F.R. § 21.9550. Further, the law provides that an individual who, as of August 1, 2009, has used entitlement under Chapter 30, Title 38, United States Code, the Montgomery GI Bill-Active Duty (MGIB-AD), but retains unused entitlement under that chapter, makes an irrevocable election to receive educational assistance under the provisions of 38 U.S.C. Chapter 33 in lieu of educational assistance under the provisions of Chapter 30, will be limited to one month (or partial month) of entitlement under Chapter 33 for each month (or partial month) of unused entitlement under Chapter 30 (including any months of Chapter 30 entitlement previously transferred to a dependent that the individual has revoked). 38 U.S.C. § 3327(a)(1), (i); 38 C.F.R. § 21.9550(b)(1). In BO v. Wilkie, the United States Court of Appeals for Veterans Claims (Court) held that veterans with two or more qualifying periods of service can receive benefits under both the Montgomery GI Bill, Chapter 30, Title 38, United States Code, and the Post-9/11 GI Bill. 31 Vet. App. at 324. The Court stated that a veteran need not relinquish or exhaust any remaining benefits under the Montgomery GI Bill to obtain benefits under the Post-9/11 GI Bill. Id. Thus, veterans who use, but do not exhaust MGIB-AD benefits and who then apply for Post-9/11 GI Bill benefits after a separate period of service, are not limited to the total of 36 months provided for the MGIB-AD program. This is so because, as explained by the Court, 38 U.S.C. § 3327 does not apply "in cases of individuals with dual entitlement based on multiple periods of service," but rather, applies only in cases of "individuals with dual entitlement based on a single period of service." Id. at 334. The Court's holding in BO was ultimately affirmed and expanded upon by the Supreme Court of the United States (Supreme Court) in Rudisill v. McDonough, wherein it was held veterans having separate entitlements to both MGIIB-AD and Post-9/11 GI benefits can use those benefits, in any order, up to the statutory 48-month cap without having to first relinquish or exhaust their entitlement under either program. 601 U.S. 294 (2023). The Board notes that BO and Rudisill are not squarely applicable to the facts of the Veteran's case because the Veteran's entitlement under Chapter 33 was not limited by any prior usage of Chapter 30 benefits. Rather, the Veteran had been entitled to benefits under Chapters 1606 and 1607. When the Veteran elected to use Chapter 33 benefits, rather than under Chapters 1606 and 1607, his entitlement to Chapter 33 benefits was limited only by the 48-month statutory cap. Indeed, the only reason that the Veteran did not receive the full 36 months of benefits under Chapter 36 was because he had used more than 12 months of Chapter 1607 benefits. It is clear that the Veteran was awarded a total of 48 months of VA educational assistance in this case. As such, the Board finds that there is no legal basis to award the Veteran additional entitlement to VA educational assistance benefits under the Post-9/11 GI Bill as of January 30, 2020. This is so because, under governing law, where an individual is eligible for two or more education programs, the aggregate period for which any person may receive assistance may not exceed 48 months (or the part-time equivalent). 38 U.S.C. § 3695(a), (b); 38 C.F.R. § 21.4020. In this case, the 48-month applies to the Veteran's use of Chapter 33 benefits in connection with his previous usage of benefits under Chapter 1607. Thus, because the Veteran had used all but 27 days of his awarded 48 months of entitlement under two or more programs, the Veteran's claim for VA educational assistance benefits under Chapter 33 (the Post-9/11 GI Bill) in excess of 27 days as of January 30, 2020, must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Neilson, 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.