Citation Nr: 1321072 Decision Date: 07/01/13 Archive Date: 07/12/13 DOCKET NO. 11-07 755 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a permanent and total disability rating for service-connected disability. 2. Entitlement to Dependents' Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from July 1968 to July 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). Clarification of the issues on appeal is warranted. In his October 2009 claim, the Veteran requested entitlement to both a permanent and total disability rating and Chapter 35 benefits. He was provided VCAA notice as to both claims in October 2009. In the November 2009 rating decision and January 2011 statement of the case (SOC), only entitlement to DEA benefits under 38 U.S.C. Chapter 35 was listed as an issue, but the RO also adjudicated the issue of entitlement to a permanent and total disability rating for service-connected disability within the body of the decisions. The SOC also contained the pertinent laws and regulations concerning permanent and total disability ratings, i.e., 38 C.F.R. § 3.340(b). Therefore, the Board finds that both issues are on appeal and should be addressed as separate inquiries. A review of the Virtual VA paperless claims processing system reflects that the only additional records added to the present appeal include VA tax abatement notice letters. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Although the Board regrets any further delay in adjudicating the Veteran's claims, pursuant to the duty to assist, the issues must be remanded for further development. Applicable law provides that DEA benefits under Chapter 35 of Title 38 of the United States Code, may be paid to a child or a spouse or surviving spouse of a veteran who meets certain basic eligibility requirements. Basic eligibility for DEA exists if a veteran has a permanent total service-connected disability. 38 U.S.C.A. §§ 3500, 3501 (West 2002); 38 C.F.R. §§ 3.807(a), 21.3021 (2012). A total disability may be assigned where the veteran's service-connected disabilities are rated 100 percent disabling under the rating schedule, or if the veteran is unemployable due to service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341 (2012). Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. The age of the disabled person may be considered in determining permanence. 38 C.F.R. § 3.340(b). The Veteran is service connected for PTSD and rated as 100 percent disabling, effective from May 12, 2009. Here, a remand is necessary to obtain a medical opinion regarding the permanence of the Veteran's total disability. See 38 C.F.R. § 3.340(b). An opinion is necessary as to whether his total disability impairment - that is due to his PTSD -is reasonably certain to continue throughout the life of the Veteran. Any recent VA treatment records should also be obtained. The basis of the Veteran's claim for entitlement to DEA benefits rests on his argument that he should be rated as permanently and totally disabled for his service-connected PTSD. His claim for DEA benefits depends on the outcome of his claim for entitlement to a permanent and total disability rating, which has been remanded. Thus, the claim for DEA is deferred at that time. Accordingly, the case is REMANDED for the following action: 1. Obtain copies of any outstanding records of pertinent VA medical treatment. 2. Thereafter, schedule the Veteran for a VA psychiatric examination. The claims folder should be made available to and reviewed by the examiner. All indicated tests should be performed. The examiner should render an opinion as to whether the Veteran's service-connected total disability impairment (due to his PTSD) is reasonably certain to continue throughout the life of the Veteran such that a permanence of the total disability can be taken to exist. In rendering the opinion, the age of the Veteran may be considered in determining permanence. A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report. 3. Then, readjudicate the claims on appeal. If a benefit sought on appeal is not granted, the RO should issue the Veteran and his representative a supplemental statement of the case on that claim and provide the Veteran an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).