Citation Nr: 1326673 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-21 136A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Basic eligibility for Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code. ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from May 31, 2000, to June 27, 2000; March 28, 2004, to July 13, 2004; December 1, 2004, to July 9, 2005; and June 30, 2007, to January 19, 2008. The appellant is the Veteran's spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, in which the RO denied the appellant's claim for DEA benefits under Chapter 35. A review of the Virtual VA paperless claims processing system reveals additional documents pertinent to the present appeal. FINDING OF FACT By a May 2013 rating decision, the 100 percent evaluation assigned to the Veteran's service-connected posttraumatic stress disorder (PTSD) was continued; with a specific finding that there was a likelihood of improvement and the evaluation was not considered permanent and was subject to future review. CONCLUSION OF LAW The basic eligibility criteria for DEA benefits under Chapter 35, Title 38, United States Code have not been met. 38 U.S.C.A. §§ 3500, 3501, 3510, 3512 (West 2002); 38 C.F.R. §§ 3.327, 3.340, 3.807, 21.3021, 21.3030, 21.3040, 21.3041 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In the present case, the law, and not the facts, is dispositive; and thus the provisions of the VCAA do not apply. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). DEA Benefits The appellant alleges entitlement to DEA, asserting that his spouse's service-connected PTSD has been deemed both totally and permanently disabling. He asserts such on the basis that the Veteran is in receipt of letters from the RO in Boston, Massachusetts, indicating that she is considered to be totally and permanently disabled due to her service-connected disabilities. DEA is provided for the purpose of educating a child, spouse, or surviving spouse of a Veteran whose education would otherwise be impeded or interrupted by the disability or death of a parent from a disease or injury incurred or aggravated in active service. 38 U.S.C.A. § 3500. A child, spouse, or surviving spouse, is eligible to receive DEA if his parent was a Veteran who: (1) died of a service-connected disability; (2) died while totally and permanently disabled from a service-connected disability; or (3) has a total and permanent disability rating resulting from a service-connected disability. 38 U.S.C.A. §§ 3501, 3510, 3512; 38 C.F.R. §§ 3.807(a), 21.3021, 21.3030, 21.3040, 21.3041. Generally, a total disability is considered to exist when there is present any impairment of mind or body, which renders it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a). Total disability may or may not be permanent. A total disability permanent in nature is one where impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340(b). The age of the disabled person may be considered in determining permanence. 38 C.F.R. § 3.340(b). Once permanence is established, a Veteran need not undergo further VA examinations in order to retain a 100 percent disability rating for the permanent disability. See 38 C.F.R. §§ 3.327(b)(2)(iii). By a July 2008 rating decision issued by the RO in Houston, Texas, the evaluation assigned to the Veteran's service-connected PTSD, her only service-connected disability, was increased to 100 percent. At that time, the RO informed the Veteran, in the narrative portion of the rating decision, found in Virtual VA, that an examination would be scheduled at a future date to determine the severity of her PTSD. There was no finding that the Veteran was considered to be totally and permanently disabled due to her PTSD. By a May 2013 rating decision also issued by the RO in Houston, Texas, found in Virtual VA, the evaluation assigned to the Veteran's service-connected PTSD was continued at 100 percent. The RO informed the Veteran, in the narrative portion of the rating decision, that as there was a likelihood of improvement; her evaluation is not considered permanent and is subject to future evaluation. Indeed, the appellant submitted two letters from the RO in Boston, Massachusetts, dated in August 2010 and February 2011. The letters are each a summary of benefits and each indicates that the Veteran is considered to be totally and permanently disabled due to her service-connected disabilities. In Virtual VA, the Board reviewed a January 2009 summary of benefits letter from the RO in Boston, Massachusetts, which did not include the query as to whether the Veteran was considered to be totally and permanently disabled due to her service-connected disabilities. A March 2010 summary of benefits letter from the RO in Boston, Massachusetts, includes a notation that such was "not indicated." The Board also reviewed summary of benefits letters dated in February 2012 and February 2013 from the Houston, Texas, RO, which did not include the query as to whether the Veteran was considered to be totally and permanently disabled due to her service-connected disabilities. The Board cannot explain why the August 2010 and February 2011 letters, and any other letters the appellant or Veteran may have received from the RO in Boston, Massachusetts, at times included a positive indication that the Veteran is considered to be totally and permanently disabled due to her service-connected disabilities. Such may be simply a typographical error or a misunderstanding of the Veteran's 100 percent evaluation. It is clear that the letters, summaries of the Veteran's benefits, are form letters and do not include a narrative discussion of the Veteran's PTSD symptomatology or other clinical findings. The summary of benefits letters are contrasted with the January 2008 and May 2013 rating decisions, which discuss the Veteran's service-connected disability in detail, from review of clinical information available, and specifically inform the Veteran that her evaluation is not permanent. Significantly, neither the appellant nor the Veteran has asserted that there is clinical evidence showing that the Veteran is totally and permanently disabled due to her PTSD. Thus, the Board finds that the January 2008 and May 2013 rating decisions are more probative than the August 2010 and February 2011 letters as to the issue of whether the Veteran is considered to be totally and permanently disabled due to her service-connected disabilities, which only include PTSD. The United States Court of Appeals for Veterans Claims has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). (Continued on the next page) Without probative evidence that the Veteran is totally and permanently disabled due to her service-connected PTSD, her only service-connected disability, there is no basis upon which her spouse, the appellant, meets the basic eligibility requirements for DEA benefits. The Board thus finds that the preponderance of the evidence is against the claim and the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Basic eligibility for DEA benefits under Chapter 35, Title 38, United States Code, is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs