Citation Nr: A26007828 Decision Date: 01/28/26 Archive Date: 01/28/26 DOCKET NO. 241112-494350 DATE: January 28, 2026 REMANDED The issue of entitlement to VA educational assistance benefits under Chapter 33, Title 38 of the United States Code (known as the Post-9/11 GI Bill) is remanded. REASONS FOR REMAND The Veteran in this case is C.L.K. and the Appellant is his dependent son, K.M.K. The decision on appeal was issued on October 29, 2024, and constitutes an initial decision; therefore, the modernized appeal review system, also known as the Appeals Modernization Act (AMA), applies. In his November 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Appellant elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the October 2024 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. 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 the claim on appeal. 38 C.F.R. § 3.103(c)(2)(ii). Entitlement to VA educational assistance benefits under Chapter 33, Title 38, United States Code (known as the Post-9/11 GI Bill). In the October 29, 2024, decision on appeal, the AOJ informed the Appellant that his educational assistance benefits under the Post-9/11 GI Bill - Transfer of Entitlement program had been terminated, effective April 30, 2023, because the Department of Defense (DoD) had determined that his parent, C.L.K. "failed to complete his military service agreement." The decision noted that only DoD could overturn this determination and that only the Veteran could appeal the decision to DoD. In the November 12, 2024, VA Form 9, the Appellant asked why the benefits were revoked and indicated that his father, the Veteran, had retired from military service "due to disability." While the October 2024 decision on appeal is in the claims file, it does not comply with the notice requirements set forth in 38 U.S.C. § 5104. Generally, a claimant is entitled to notice of a decision by the Secretary that includes an explanation of the procedure for obtaining review of the decision. 38 U.S.C. § 5104(a). Such notice must also 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). Without adequate notice of the basis for the decision on appeal, a claimant cannot make an informed decision as to whether or not to accept or appeal the decision nor can he or she know what evidence to submit in order to substantiate the appeal. See Ingram v. Nicholson, 21 Vet. App. 232, 252 (2007). Here, it does not appear that the Appellant received adequate notice of the decision denying his benefits as the decision notice letter did not cite to any laws or regulations, there was no discussion regarding the evidence that was reviewed and considered prior to denying the claim, there was no discussion regarding what exactly the Veteran's military service agreement required (or did not require), and there was no discussion regarding whether the Veteran's discharge from military service was due to a disability as asserted by the Appellant. Moreover, a review of the record reveals that the Veteran's records which are pertinent to the resolution of the claim, have not been associated or linked with the Appellant's claims file. For instance, neither the Veteran's Certificate of Release or Discharge from Active Duty (DD Form 214) nor his service personnel records (SPRs) have been uploaded to the Appellant's claims file. Similarly, any relevant medical records or lay statements addressing the nature of the Veteran's separation from service are missing from the record. Given the current status of the appellate record before the Board, it is impossible for the Board to properly determine whether the Veteran's alleged "discharge for failure to complete his military service agreement" was due to disability. Given that this case involves the termination of Chapter 33 benefits that were transferred from the Veteran to the Appellant, the apparent failure of the AOJ to associate all of the relevant evidence (i.e. the Veteran's records) with the Appellant's claims file, and the AOJ's failure to provide notice of the decision which complies with 38 U.S.C. § 5104, is an error in satisfying a regulatory or statutory duty. 38 C.F.R. § 20.802. As such, remand is warranted for the AOJ to upload the relevant evidence to the electronic claims file and then readjudicate the Appellant's claim and provide notice of the decision which complies with 38 U.S.C. § 5104. This matter is REMANDED for the following actions: 1. Obtain and associate with the electronic claims file all pertinent records documenting the Veteran's separation from military service including but not limited to the Veteran's Certificate of Release or Discharge from Active Duty (DD Form 214) and his service personnel records. The AOJ should also associate with the electronic claims file any VA education records for the Veteran which would document or reflect the transfer of entitlement of Chapter 33 benefits from the Veteran to the Appellant. 2. Contact the Appellant and ask him to identify any medical records, military records, or lay statements which he believes would substantiate his claim that the Veteran retired or was separated from military service due to disability. If necessary, obtain the proper authorizations from the Appellant and/or Veteran to obtain any such records or statements, then locate and obtain any such records. Finally, upload any such records or statements to the electronic claims file. If any records or statements are identified but cannot be obtained for any reason, this should be documented for the record. 3. Adjudicate the Appellant's claim for VA educational assistance benefits under Chapter 33, Title 38, United States Code (known as the Post-9/11 GI Bill). Notice of the decision must comply with 38 U.S.C. § 5104(b) and shall include but is not limited to: a summary of the evidence; a summary of the applicable laws and regulations; identification of findings favorable to the claimant; and, if the claim is denied, identification of the substantive conditions not satisfied but necessary for the claim to be granted. The decision notice letter should address the Appellant's contentions that the Veteran retired from military service "due to disability" and whether the Veteran's discharge for "failure to complete his military service agreement" was due to disability. John J. Crowley 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.