Citation Nr: 1323376 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 10-02 808 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to Dependent's Educational Assistance (DEA) under 38 U.S.C.A. Chapter 35. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from November 1964 to August 1989. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which found that eligibility for DEA assistance was not established. The Veteran testified before the undersigned at an August 2011 Travel Board hearing. The hearing transcript is of record. The Board notes that the Veteran submitted additional medical evidence following the last adjudication by the RO. However, he waived RO consideration of that evidence during his August 2011 hearing. See August 2011 Travel Board hearing transcript. During the August 2011 hearing, the Veteran reported that he experienced neuropathy of the hands and feet, memory loss, depression, and a depressed immune system, secondary to chemotherapy treatments he underwent for his service-connected non-Hodgkin's lymphoma. The issue of service connection for residuals of non-Hodgkin's lymphoma has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's service-connected non-Hodgkin's lymphoma is evaluated as 100 percent disabling, effective July 24, 2008; the disability is permanent in nature, and impairment from the disability is reasonably certain to continue throughout his life CONCLUSION OF LAW The criteria for establishing entitlement to DEA benefits pursuant to 38 U.S.C.A. Chapter 35 have been met. 38 U.S.C.A. §§ 3501, 5113 (West 2002); 38 C.F.R. §§ 3.807, 21.3020, 21.3021 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Initially, the Board notes that the provisions of the VCAA do not apply to claims for educational benefits under Chapter 35. See e.g., Barger v. Principi, 16 Vet. App. 132, 138 (2002). Furthermore, the VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Additionally, in view of the Board's favorable decision, further assistance is unnecessary to aid the Veteran in substantiating his claim for DEA benefits. Analysis VA law provides that DEA benefits under Chapter 35, Title 38, United States Code, may be paid to dependents of a veteran who meet certain basic eligibility requirements. As pertinent to this appeal, basic eligibility for DEA exists if a Veteran has a permanent, total service-connected disability. 38 U.S.C.A. §§ 3500, 3501. 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. 38 C.F.R. § 3.340(b). Private treatment records show that in July 2008, the Veteran was diagnosed with Grade 3 follicular non-Hodgkin's lymphoma. They also show that the disease has been treated with chemotherapy and a stem cell transplant. In a December 2008 rating decision, the RO granted service connection for non-Hodgkin's lymphoma. An evaluation of 100 percent was assigned, effective July 24, 2008, based on what the RO termed as the "actively malignant nature" of the disease. Private treatment records from the Florida Cancer Specialists show that CT and PET scans done in February 2009, after a round of chemotherapy, showed an increase in size and FDG avidity of 3 mesenteric lesions, consistent with progressive lymphoma. The Veteran was afforded a VA examination in February 2009. The examiner noted that the Veteran's non-Hodgkin's lymphoma had been active since its onset in 2008, and concluded that it was still active at that time. In a February 2009 rating decision, based on the results of the February 2009 VA examination, the RO continued the 100 percent rating for the Veteran's non-Hodgkin's lymphoma. Private treatment records from the H. Lee Moffitt Cancer Center and Research Institute show that a PET/CT scan done in April 2009 revealed mixed appearance of mesenteric lymphadenopathy, with some nodes larger and more hypermetabolic, consistent with progressive disease. Treatment records from July 2009 show that the Veteran continued to be diagnosed with non-Hodgkin's lymphoma. In an August 2011 statement, the Veteran's private physician, S.R., MD reported that the Veteran was a long-standing patient with non-Hodgkin's lymphoma, who had presented with very aggressive disease. She also noted that the Veteran had undergone multiple chemotherapies and required an autologous transplant in 2009. She noted further that the Veteran was currently under surveillance and would be for the remainder of his life, and opined that the disease had a high risk of reoccurrence. The physician also noted that the Veteran had several sequelae events, secondary to the multiple aggressive chemotherapies he endured to treat his disease. The Board finds that the Veteran's non-Hodgkin's lymphoma is not only totally disabling, as already determined by the RO, but also permanent. In this regard, although the evidence shows that the disease has undergone periods of improvement, following chemotherapy, it does not show that the disease has gone into complete remission at any point during the appeal period. The Veteran testified in August 2011 that he currently is being monitored for two small lesions in his lower abdomen. Furthermore, the evidence also shows that at certain points in time, there was evidence on CT and PET scans of progression of the disease. More importantly though, the Veteran's long-term treating physician had indicated that the Veteran is still currently diagnosed with non-Hodgkin's lymphoma, and opined that the Veteran's cancer is very aggressive, with a high risk of reoccurrence. She also noted that treatment for the cancer had caused other secondary complications for the Veteran. There is no contradictory medical opinion of record. Based on this evidence, the Board finds that the Veteran's impairment from his service-connected non-Hodgkin's lymphoma is reasonably certain to continue throughout his life. Therefore, resolving doubt in the Veteran's favor, basic eligibility for DEA benefits under Chapter 35 is established. (CONTINUED ON NEXT PAGE) ORDER Entitlement to DEA benefits under 38 U.S.C.A. § Chapter 35 is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs