Citation Nr: 1307876 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 07-30 584 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for the Veteran's cause of death. 2. Entitlement to Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran had periods of active duty between March 1943 and March 1968. During that time, he served a total of 20 years and 2 days on active duty. The Veteran died in October 1992. The appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. When this case was previously before the Board in September 2009, it was remanded for additional development. The case has since been returned to the Board for further appellate action. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the appellant's claims. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues decided herein. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. The Veteran died in October 1992 due to a brainstem infarct, with giant pituitary adenoma as an other significant condition contributing to death but not resulting in the underlying cause. 2. At the time of the Veteran's death, service connection was not in effect for any disability. 3. The Veteran's giant pituitary adenoma and brainstem infarct were not present until more than one year after the Veteran's discharge from service, and are not shown to be etiologically related to the Veteran's active service, to include due to his confirmed in-service exposure to ionizing radiation. CONCLUSIONS OF LAW 1. A disability incurred in or aggravated by active service did not cause or substantially or materially contribute to the Veteran's cause of death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 1310 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311, 3.312 (2012). 2. The criteria for entitlement to DEA benefits under Chapter 35, Title 38, United States Code, have not been met. 38 U.S.C.A. §§ 3500, 3501 (West 2002 & Supp. 2012); 38 C.F.R. § 3.308 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the Court held that when VA receives a detailed claim for death and indemnity compensation (DIC) under 38 U.S.C.A. § 1310, it must provide a detailed notice to the claimant. Specifically, the Court held that, under section 38 U.S.C.A § 5103(a), the notice must include a statement of the conditions, if any, for which a veteran was service connected at the time of death; an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. With respect to the issues decided herein, the record reflects that the appellant was provided notice in March 2006, which informed her of the respective responsibilities of the claimant and VA, actions taken on her behalf, and the information or evidence necessary to establish the cause of death claim. She was provided with notice of the Dingess elements of her claim by way of a June 2006 letter. Both of these letters were provided to the appellant prior to the July 2006 rating decision under appeal. Thus, the basic VCAA notice requirements, as well as the Dingess requirements, were provided to the appellant prior to the initial adjudication of her claim. However, the RO did not inform the appellant of the specific evidence necessary to establish service connection for cause of death for a Veteran with no service-connected disabilities. The Board observes that, although the appellant was not specifically informed of the evidence necessary to establish service connection for cause of death for a Veteran without service-connected disabilities, the appellant's statements throughout the development of her claim and appeal indicate her actual knowledge of the evidence necessary to establish service connection for the cause of death in this particular case. She is contending that the Veteran's pituitary adenoma was caused by his in-service exposure to radiation, and throughout the course of this claim she has provided ongoing information related to that radiation exposure. In fact, VA conceded in-service radiation exposure and, as discussed in more detail below, the conclusion in this case is based upon a current medical determination as to whether the radiation caused the Veteran's death. Consequently, the Hupp notice error here did not prejudice the appellant because she was aware that service connection for the cause of death could be established on this basis and a reasonable person could be expected to understand from the notice provided what was needed to establish entitlement to service connection for the cause of the Veteran's death in this case. See George-Harvey v. Nicholson, 21 Vet. App. 334, 339 (2007). Furthermore, the appellant did not receive notice specific to her claim for DEA benefits under 38 U.S.C.A. Chapter 35. As explained below, the grant of DEA benefits requires that the Veteran either died of a service-connected disability or died while having a disability evaluated as total and permanent in nature resulting from a service-connected disability. As the decision below denies service connection for the cause of the Veteran's death, and because during life he was not service connected for any disability, there is no possibility under the law for the educational assistance benefit to be granted. The absence of notice with regard to that aspect of the appellant's claim is, therefore, harmless as it could not have impacted the ultimate outcome of her claim. Under the circumstances of this case, a remand for corrective notice would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Although the appellant was not provided complete notice compliant with Hupp, the Board finds that there is no prejudice to her in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Accordingly, the failure to provide notice with respect to that element of the claim is no more than harmless error. Regarding VA's duty to assist, the record reflects that all pertinent available service treatment records (STRs) and all available post-service medical evidence identified by the appellant have been obtained. Records from private treatment facilities (Dr. M.T. and Dr. J.M.M.) have been destroyed due to the passage of time, so further attempts to obtain them would be futile. Neither the appellant nor her representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. In addition, the RO indeed forwarded this matter for an advisory opinion as to the Veteran's radiation exposure and the likelihood that it caused his pituitary adenoma. The advisory opinion is of record and has been considered in the adjudication of this claim. Also, the special development procedures of 38 C.F.R. § 3.311 were undertaken to the extent possible. The Board finds that VA has complied with its duty to assist. In sum, the Board is satisfied that any procedural errors in the RO's development and consideration of these claims were insignificant and not prejudicial to the appellant. Accordingly, the Board will address the merits of the claims. II. Legal Criteria A. Cause of Death Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a Veteran if the Veteran died from service-connected disability. 38 U.S.C.A. § 1310 (West 2002 & Supp. 2012); 38 C.F.R. § 3.5 (2012). Service connection for the cause of a Veteran's death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of the Veteran's death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests a malignant tumor to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). A service-connected disability will be considered as the principal, or primary, cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Service connection for a disability which is claimed to be attributable to radiation exposure during service can be accomplished in three different ways. See Ramey v. Brown, 9 Vet. App. 40 (1996). First, if a Veteran participated in a "radiation-risk activity" during service, and after service developed one of certain enumerated cancers, it will be presumed that the cancer was incurred in service. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). A "radiation-exposed veteran" is one who, while serving on active duty or on active duty for training or inactive duty for training, participated in a radiation-risk activity. "Radiation-risk activity" is defined as onsite participation in a test involving the atmospheric detonation of a nuclear device; participation in the occupation of Hiroshima or Nagasaki, Japan, between August 6, 1945 and July 1, 1946; internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II with opportunity for exposure to ionizing radiation comparable to that of occupation forces in Hiroshima or Nagasaki above; certain service for at least 250 days before February 1992 on the grounds of a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or Oak Ridge, Tennessee; certain service before January 1, 1974 on Amchitka Island, Alaska; or certain service as an employee of the Department of Energy. 38 C.F.R. § 3.309(d)(3). The term "onsite participation" means during the official operational period of an atmospheric nuclear test, presence at a test site, or performance of official military duties in connection with ships, aircraft or other equipment used in direct support of the nuclear test. 38 C.F.R. § 3.309(d)(3)(iv)(A). For tests conducted by the United States, the term "operational period" includes, for Operation GREENHOUSE, the period between April 8, 1951, through June 20, 1951. 38 C.F.R. 3.309(d)(3)(v)(E). Second, if a Veteran was exposed to ionizing radiation during service, and after service developed one of the specifically enumerated diseases or a disease which may be induced by exposure to ionizing radiation, the claim will be developed and adjudicated under the provisions of 38 C.F.R. § 3.311. Third, the United States Court of Appeals for the Federal Circuit has held that when a Veteran is found to not be entitled to a regulatory presumption of service connection for any given disability, the claim must nonetheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 Fed.3d 1039 (Fed. Cir. 1994). B. Dependent's Educational Assistance Educational assistance is available to a child or surviving spouse of a veteran who, in the context of this issue on appeal, either died of a service-connected disability or died while having a disability evaluated as total and permanent in nature resulting from a service-connected disability. 38 U.S.C.A. §§ 3500, 3501; 38 C.F.R. §§ 3.807, 21.3020, 21.3021. C. Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Analysis The Board has reviewed all the evidence in the claims files, with a focus on the evidence relevant to this appeal. Although this Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate her claims and what the evidence in the claim file shows, or fails to show, with respect to her claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). A. Cause of Death The appellant contends that the Veteran's giant pituitary adenoma was a result of his military service, specifically in-service radiation. The first point of discussion must, therefore, be the extent to which the Veteran was exposed to radiation in service. The record reflects that the Veteran participated in an atmospheric nuclear testing operation called Operation GREENHOUSE in April and May of 1951. Thus, for this period, the Veteran is deemed a radiation-exposed veteran. A review of the Veteran's service treatment records (STRs) shows that a radiation exposure dosage was calculated for him as a result of his participation in Operation GREENHOUSE. According to the records, the Veteran received 228 milliroentgens of radiation exposure in April 1951 and 205 milliroentgens of radiation exposure in May 1951. The RO conceded this exposure in its July 2006 rating decision. Moreover, in May 2010, the Defense Threat Reduction Agency (DTRA) submitted a statement summarizing the particular doses that the Veteran could have received during his participation in Operation GREENHOUSE. In particular these doses were reported as not more than 18 rem external gamma dose; 0.5 rem external neutron dose; 0.1 rem internal committed dose to the brain (alpha); and 0.1 rem internal committed dose to the brain (beta plus gamma). In an August 2007 statement, the appellant stated that the Veteran was not only involved in atmospheric nuclear testing in 1951, but was also involved in the occupation of Japan. A review of the Veteran's service personnel records (SPRs) shows that from December 1945 to February 1946 he was attached to the United States Army 7th Cavalry. The Board remanded the issues on appeal in 2009 in order to further develop the record as it relates to the Veteran's radiation exposure in Japan. In April 2010, the DTRA submitted a Scenario of Participation and Radiation Exposure pertaining to the Veteran. This document shows that the DTRA acknowledged the appellant's contention that the Veteran participated in the occupation of Japan following World War II. It also noted the Veteran's History of Assignments document, which includes an indication that the Veteran was assigned to the 7th Cavalry from December 1945 to February 1946. The DTRA also noted that this document is inconsistent with the remaining SPRs and provided a detailed summary of the Veteran's movement during service according to the remaining personnel documents. In October 1945, the Veteran arrived in Tokyo, Japan (approximately 420 miles from Hiroshima and 595 miles from Nagasaki). He then reported aboard the USS PC 1137, located at Tokyo Bay, in December 1945; this ship then moved to Guam, Marianas Islands, in January 1946. The records then show that he detached from that ship later in January 1946 and transferred to Charleston, South Carolina. The DTRA confirmed that a search of the United States Army unit diary records for all units of the 7th Calvary Regiment did not show that the Veteran joined the unit in any capacity between December 1945 and February 1946, during which time the 7th Calvary Regiment was stationed at Yokohama, Japan. Also, the DTRA confirmed that the Veteran's service records, as well as the naval unit records, do not show that he was assigned to the 7th Calvary. Thus, there appears to be a conflict within the Veteran's service records as to whether he was assigned to the United States Army 7th Calvary in Japan. The Board finds, however, that additional remand to address this discrepancy is unnecessary in this case. The April 2010 DTRA report also confirmed that while the 7th Calvary was indeed in Japan between December 1945 and February 1946, it was stationed at Yokohama, Japan, which was noted to be approximately 415 miles from Hiroshima and 580 miles from Nagasaki. The term "occupation of Hiroshima or Nagasaki, Japan, by United States forces" means official military duties within 10 miles of the city limits of either Hiroshima or Nagasaki, Japan. 38 C.F.R. § 3.309(d)(3)(vi) (2012). Assuming then that the Veteran indeed had service with the 7th Calvary from December 1945 to February 1946, he is nevertheless not deemed by VA regulations to be a radiation-exposed veteran with regard to this service due to the 7th Calvary's proximity to Hiroshima and Nagasaki during the time period in which the Veteran is said to have been assigned to that unit. 38 C.F.R. § 3.309(d)(3)(ii)(B). Thus, the evidence of record establishes a certain level of exposure to radiation by the Veteran during his participation in Operation GREENHOUSE, but does not establish that he can be described as a radiation-exposed veteran related to service in Japan. The question remaining, therefore, is whether the Veteran's confirmed radiation exposure during Operation GREENHOUSE can be deemed the cause of a disability that caused or contributed substantially or materially to the cause of his death. The appellant's claim is that the Veteran's brain tumor grew as a result of his radiation exposure in service and ultimately caused his death. The records show that the Veteran died in October 1992. The death certificate lists the immediate cause of death as a brainstem infarct. Additionally, resection of "giant pituitary adenoma" is listed as other significant conditions contributing to death. The appellant submitted medical research to VA from the Merck Manuals Online Medical Library. This information indicates that the pituitary gland is a pea-sized gland at the base of the brain. Additionally, this medical research included a list of tumors that originate in or near the brain; listed there is pituitary adenoma. While a pituitary adenoma is a brain tumor, it is not a condition which is subject to presumptive service connection based on exposure to radiation. 38 C.F.R. § 3.309(d). However, tumors of the brain and central nervous system are considered to be radiogenic conditions that are subject to the provisions of 38 C.F.R. § 3.311. In all claims in which it is established that a radiogenic disease first became manifest after service and was not manifest to a compensable degree within any applicable presumptive period as specified in 38 C.F.R. §§ 3.307 or 3.309, and it is contended the disease is a result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose or doses. 38 C.F.R. § 3.311(a). When it is determined that a Veteran was exposed to ionizing radiation, that the Veteran subsequently developed a radiogenic disease, and such disease became manifest within a specified period, then the claim is forwarded to the Under Secretary for Benefits for a determination as to whether it is at least as likely as not that the Veteran's disease was a result of exposure to ionizing radiation. 38 C.F.R. § 3.311. In this case, the DTRA's May 2010 report shows that the Veteran's doses from his participation in Operation GREENHOUSE were 18 rem external gamma dose; 0.5 rem external neutron dose; 0.1 rem internal committed dose to the brain (alpha); and 0.1 rem internal committed dose to the brain (beta plus gamma). In June 2012, the Director of the Post 9-11 Era Environmental Health Program, a medical doctor, submitted an opinion as to the likelihood that the Veteran's confirmed radiogenic disease was a result of his confirmed exposure to radiation in service. The report shows that the Interactive Radioepidemiological Program (IREP) of the National Institute for Occupational Safety and Health was used to estimate the likelihood that exposure to ionizing radiation was responsible for the Veteran's cancer. For the purposes of calculation, the Veteran's radiation doses were assumed to have been received as a single dose in the earliest year of exposure (1951). This assumption, it was noted, would tend to increase the probability of causation as calculated by the IREP. The factors set forth at 3.311(e) were considered in the calculation. The program was noted to have calculated the probability of causation as 20.40%. The specific calculations generated by the IREP were also associated with the record. Based upon this finding, the medical doctor opined that it is not as likely as not that the Veteran's pituitary adenoma can be attributed to his ionizing radiation during service. The Director of VA's Compensation and Pension Service also submitted an opinion, based upon the IREP findings, which deemed there to be no reasonable possibility that the Veteran's pituitary adenoma can be attributed to his radiation exposure in service. Since the Director's opinion was based on the IREP calculations and the IREP calculations included consideration of the pertinent factors set forth at 38 C.F.R. § 3.311(e), the Board concludes that the opinion is in compliance with the regulatory requirements. Based on the record, the Board finds that service connection for the cause of the Veteran's death is not warranted on this basis. There is no suggestion that the information provided to the DTRA or the Director of Compensation and Pension is incorrect, and there was no evidence from a medical doctor submitted suggesting a positive correlation between the Veteran's pituitary adenoma and exposure to radiation. The Board finds the medical opinion against the claim to be the most competent and probative evidence of record regarding the etiology of the Veteran's pituitary adenoma in relation to radiation exposure. The Board acknowledges that the appellant believes that the Veteran's in-service radiation exposure ultimately caused his death, but there is simply no medical evidence to establish this fact. Accordingly, the Board finds that service connection under the criteria of 38 C.F.R. § 3.311 is not warranted. Direct Service Connection and Chronic Disease Presumption Finally, the remaining considerations are whether service connection may be warranted on a direct basis, or on a presumptive basis for a malignant tumor manifesting within one year after service. Initially, the Board notes that the medical evidence of record shows that the Veteran's pituitary adenoma initially manifested in 1992, more than twenty years following his service. Thus, presumptive service connection for chronic diseases, such as tumors of the brain, is not applicable in this case. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Also, during service, the Veteran did not report any symptoms related to his brain, to suggest an initial manifestation of a brain infarct, or symptom thereof, or pituitary adenoma, during service. The service treatment records are largely without any clinical notations and show normal periodic examinations. There is no suggestion of any abnormality in the service treatment records, to include any issues related to the brain. Again, the initial manifestation of the Veteran's ultimately fatal brain infarct, with contributing giant pituitary adenoma was in 1992, more than twenty years following his active service. There is simply no competent evidence of record linking the Veteran's giant pituitary adenoma or his brain infarct to his active service. With respect to whether the appellant's own statements can establish that the Veteran's pituitary adenoma or brain infarct was caused by the in-service radiation exposure, the Board notes that VA must consider all favorable lay evidence of record. 38 C.F.R. § 5107(b); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Accordingly, in addition to the medical evidence above, the Board has carefully considered the appellant's written submissions to VA, to include the medical articles submitted with her own lay statements. The Board has considered the appellant's statements that the Veteran's death was related to his service, particularly that his in-service exposure to ionizing radiation contributed substantially or materially to his death. The Board does not doubt the sincerity in her belief that these elements caused the Veteran's giant pituitary adenoma and ultimate death. However, as a layperson, the appellant is not competent to attribute the Veteran's symptoms and diagnosis to radiation. See Routen v. Brown, 10 Vet. App. 183, 187 (1997), aff'd sub nom Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S.Ct. 404 (1998). Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Accordingly, for the above reasons, the Board concludes that the preponderance of the evidence is against the claim of entitlement to service connection for the cause of the Veteran's death. As such, the benefit-of-the-doubt rule does not apply, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Dependents' Educational Assistance In this case, at the time of his death, the Veteran was not service-connected for any disability. Therefore, he had no permanent, total service-connected disability. Moreover, as discussed above, the evidence does not show that the Veteran died from a service-connected disability. Accordingly, the appellant is not an eligible person as defined by statute for purposes of establishing entitlement to DEA. Accordingly, the claim must be denied. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to DEA benefits under Chapter 35, Title 38, United States Code is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs