Andrew v. Wilkie, 18-6393

• Decision Date: 28 December 2018
• Docket Number: 18-6393
• Court: United States Court of Appeals For Veterans Claims
• Parties: Cory M. Andrew, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee.

Cory M. Andrew, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee.

No. 18-6393

United States Court of Appeals For Veterans Claims

December 28, 2018

Note Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

Michael R. Viterna, Esq. VA General Counsel (027)

Before GREENBERG, Judge.

MEMORANDUM DECISION

GREENBERG, Judge:

Cory M Andrew served in the United States National Guard between February 2009 and March 2009. Record (R.) at 470 (DD Form 214). During basic training the appellant injured his back; X-rays and MRI revealed "multilevel spondylosis" and, because he did not respond to treatment, he was deemed unable to complete training. R. at 966. The appellant was granted service connection for his back problems in December 2013. R. at 850. Currently, he appeals a Board of Veterans' Appeals decision dated November 3, 2017, ^[1] in which the Board determined that the appellant's military service does not meet the eligibility criteria for education benefits under chapter 33, title 38, of the U.S. Code (the Post-9/11 GI Bill). R. at 13-22. The appellant argues that the Board did not properly interpret the statute that establishes Post-9/11 GI Bill benefits. Appellant's Brief 4-16. For the following reasons the Court will vacate the November 2017, decision on appeal denying education benefits and remand the matter for readjudication.

Justice Alito noted in Henderson v. Shinseki that our Court's scope of review in this appeal is "similar to that of an Article III court reviewing agency action under the Administrative Procedure Act, 5 U.S.C. § 706." 562 U.S. 428, 432 n.2 (2011); see 38 U.S.C. § 7261. The creation of a special court solely for veterans, and other specified relations such as their widows, is consistent with congressional intent as old as the Republic. See Hayburn's Case, 2 U.S. (2 Dall.) 409, 410 n., 1 L.Ed. 436 (1792) ("[T]he objects of this act are exceedingly benevolent, and do real honor to the humanity and justice of Congress."). "The Court may hear cases by judges sitting alone or in panels, as determined pursuant to procedures established by the Court." 38 U.S.C. § 7254. Accordingly, the statutory command of Congress that a single judge may issue a binding decision, pursuant to procedures established by the Court, is "unambiguous, unequivocal, and unlimited." Conroy v. Aniskoff, 507 U.S. 511, 514 (1993); see generally Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).

From the beginning of the Republic statutory construction concerning congressional promises to veterans has been of great concern. "By the act concerning invalids, passed in June, 1794, vol. 3. p. 112, the secretary at war is ordered to place on the pension list, all persons whose names are contained in a report previously made by him to congress. If he should refuse to do so, would the wounded veteran be without remedy? Is it to be contended that where the law, in precise terms, directs the performance of an act, in which an individual is interested, the law is incapable of securing obedience to its mandate? Is it on account of the character of the person against whom the complaint is made? Is it to be contended that the heads of departments are not amenable to the laws of their country?" Marbury v. Madison, 5 U.S. 137, 164, 2 L.Ed. 60, 69 (1803).

The appellant joined the National Guard in September 2008 and was ordered to "initial active duty for training (IADT) under 10 USC 12301" with the consent of the Governor of Missouri on January 22, 2009. R. at 1135. The appellant reported for and began training in February 2009, but injured his back and was separated based on his inability to complete basic training because of his back injury. R. at 632. He was discharged on March 17, 2009. R. at 470.

In May 2010, the appellant filed a claim for service connection for his back issues stating: "After leaving military service, my back condition is continuing to get worse. I am unable to perform tasks that I had once done before enlisting. I am unable to perform work that requires physical labor or drive for long periods of time." R. at 1138-42.

In December 2013, he was granted service connection for spondylosis, degenerative disc disease and strain of the lumbar spine with an effective date of June 7, 2010. R. at 827-32, 843-55.

In July 2014, the appellant filed an application for entitlement to Post 9/11 GI Bill benefits. R. at 512-14. The claim was denied by the regional office (RO) which stated that the appellant did not have "qualifying active duty service" to be eligible for the Post-9/11 GI Bill. R. at 499-500. The appellant appealed the RO's decision to the Board alleging that he was eligible for the benefit based upon 38 CFR 21.9520(b)(2) which states, in pertinent part, that an individual who "serves a minimum of 30 continuous days and, after completion of such service, is discharged under other than dishonorable conditions due to a service connected disability" may establish eligibility for Post-9/11 GI Bill benefits. 38 C.F.R. § 21.9620(b)(2).

The Board issued a decision on the appellant's claim on November 3, 2017. R. at 13-22. In its decision, the Board affirmed the RO's denial of the appellant's entitlement to Post-9/11 GI Bill benefits. R. at 11-22. The Board relied on 38 U.S.C. § 101(21)(A) and (22)(B) to determine whether the appellant's service constitutes "active duty." R. at 2. Further, it determined that it was required to "construe the uses of the term 'active duty' in 38 U.S.C.A. § 3301(1)(B) as meaning 'full-time duty in the Armed Forces, other than active duty for training.'" R. at 21. The Board reasoned that "in conjunction with the other evidence of record, the award of service connection allows for a finding that the Veteran was discharged due to a service connected disability. However, the Veteran did not serve on active duty for Post 9-11 GI bill benefits purposes. 38 U.S.C.A. § 3301(1)." R. at 21. This appeal followed.

Entitlement to Post-9/11 GI Bill benefits is based upon 38 U.S.C. § 3311. Subsection (b) contains nine categories of persons who can be eligible for the benefit. Part (b)(2) authorizes eligibility for a person who,

(A)Commencing on or after September 11, 2001, serves at least 30 continuous days on active duty in the Armed Forces; and

(B)After completion of service described in subparagraph (A), is discharged or released from active duty in the Armed forces for a service-connected disability.

38 U.S.C. § 3311 (b)(2).

Further, Congress defined the term "active duty" to be used in the context of Post 9/11 GI Bill benefits in 38 U.S.C. § 3301. This section states:

(1) The term "active duty" has the meanings as follows (subject to the limitations specified in sections 3003(6) and 3311(b))

(B) In the case of members of the reserve components of the Armed Forces, service on active duty under a call or order to active duty under section 688, 12301(a), 12301(d), 12301(g), 12301(h), 12302, 12304, 12304(a), or 12304b of title 10 or section 712 of title 14.

38 U.S.C. § 3301 (1)(B).

The Court concludes that the Board provided an inadequate statement of reasons and bases for finding that the appellant's active duty service did not qualify for Post-9/11 GI Bill benefits under 30 U.S.C. § 3301(1)(B). See 38 U.S.C. § 7104(d)(1) (...