Veteranclaims’s Blog

September 3, 2020

Single Judge Application; In BO v. Wilkie, the Court held that a veteran with two or more qualifying periods of service can receive benefits under both the Montgomery GI Bill 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. at 324. The Court further found that any irrevocable waiver or relinquishment of benefits under one of these programs was null;

Filed under: Uncategorized — Tags: — veteranclaims @ 5:10 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 19-3338
MICHAEL J. GRAFF, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
PIETSCH, Judge: Michael J. Graff appeals pro se a January 22, 2019, Board of Veterans’
Appeals (Board) decision that denied entitlement to Post-9/11 GI Bill benefits. This appeal is
timely, and the Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a). Single-judge disposition is appropriate as the issue is of “relative
simplicity” and “the outcome is not reasonably debatable.” Frankel v. Derwinski, 1 Vet.App. 23,
25-26 (1990). For the reasons that follow, the Court will reverse the Board’s January 22, 2019,
decision and remand the matter for readjudication consistent with this decision.
I. FACTS
Mr. Graff served on active duty from December 1990 to April 1995 and from December
1998 to February 2014. Record (R.) at 50-52.
In November 2014, Mr. Graff sought education assistance benefits under the Post-9/11 GI
Bill. R. at 76-80. A VA regional office (RO) informed him that he had 20 days of unused benefits
under the Montgomery GI Bill and that if VA processed his application, he would be awarded only
20 days of benefits under the Post-9/11 GI Bill. R. at 48. However, the RO also informed him that
if he exhausted all Montgomery GI Bill benefits, he may receive “up to 12 months of entitlement
2
under the Post-9/11 GI Bill, but no more than a total of 48 months of benefits under two or more
programs.” Id. In light of that explanation, the RO stated that Mr. Graff could relinquish his
Montgomery GI Bill benefits to receive benefits under the Post-9/11 GI Bill, rescind his
application, or inform the RO that he intended to “receive (and exhaust)” his benefits under the
Montgomery GI Bill. R. at 48-49.
In response to the RO’s letter, on November 10, 2014, Mr. Graff relinquished his remaining
benefits under the Montgomery GI Bill program so that he could receive benefits under the Post-
9/11 GI Bill. R. at 74. On November 13, 2014, the RO sent Mr. Graff a certificate of eligibility
certifying that he was entitled to 20 days of benefits under the Post-9/11 GI Bill. R. at 72.
On November 26, 2014, Mr. Graff submitted a Notice of Disagreement, arguing that
although he had already used 35 months and 10 days of benefits under the Montgomery GI Bill,
he had not used any benefits under the Post-9/11 GI Bill. R. at 81. He acknowledged the 48-month
limit on benefits and argued that he was entitled to 12 months and 20 days of benefits under the
Post-9/11 GI Bill. Id. The RO subsequently found him entitled to no more than 20 days of benefits
under the Post-9/11 GI Bill. R. at 93.
On January 22, 2019, the Board found that benefits under the Montgomery GI Bill and the
Post-9/11 GI Bill were each subject to a 36-month cap, but that the aggregate period for which a
person may receive assistance under both programs could not exceed 48 months. R. at 5. The
Board explained that if a veteran converts his Montgomery GI Bill benefits to Post-9/11 GI Bill
benefits, he receives only the time he had remaining on the under the Montgomery GI Bill, but if
the veteran exhausts his Montgomery GI Bill benefits and then applies for Post-9/11 GI Bill
benefits, he is eligible to receive up to an additional 12 months of benefits. Id. The Board then
found that Mr. Graff irrevocably elected to receive benefits under the Post-9/11 GI Bill, thereby
relinquishing benefits under the Montgomery GI Bill.
On appeal, Mr. Graff cites this Court’s recent decision in BO v. Wilkie, 31 Vet.App. 321
(2019) and asks the Court to remand his claim for VA to correctly calculate his education
assistance benefits.
The Secretary concedes that in light of the Court’s decision in BO v. Wilkie , reversal of the
Board’s decision is appropriate.
3
II. ANALYSIS
In BO v. Wilkie, the Court held that a veteran with two or more qualifying periods of service can receive benefits under both the Montgomery GI Bill 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. at 324. The Court further found that any irrevocable waiver or relinquishment of benefits under one of these programs was null. Based on these holdings, the Court reversed the Board’s decision and remanded the matter
for the Board to properly calculate the veteran’s benefits.
The facts in Mr. Graff’s case are indistinguishable from the facts in BO v. Wilkie. Thus, the
Court will reverse the Board’s finding that Mr. Graff was only entitled to 20 days of educational
assistance benefits under the Post-9/11 GI Bill. See Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed.
Cir. 2013) (explaining that reversal is appropriate “where the Board has performed the necessary
factfinding and explicitly weighed the evidence”). The Court will remand the matter for the Board
to calculate the amount of benefits to which Mr. Graff is entitled in light of BO v. Wilkie.
On remand, Mr. Graff is free to present additional argument and evidence to the Board in
accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See
Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Board shall proceed expeditiously, in
accordance with 38 U.S.C. §§ 5109 and 7112 (requiring the Secretary to provide for “expeditious
treatment” of claims remanded by the Board or the Court).
III. CONCLUSION
Upon consideration of the foregoing analysis, the record of proceedings before the Court,
and the parties’ pleadings, the January 22, 2019, Board decision is REVERSED and the matter is
REMANDED for readjudication consistent with this decision.
DATED: September 2, 2020
Copies to:
Michael J. Graff
VA General Counsel

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