Citation Nr: 1329885	
Decision Date: 09/18/13    Archive Date: 09/25/13

DOCKET NO.  11-06 359	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Whether the appellant is eligible for Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code.


WITNESSES AT HEARING ON APPEAL

Appellant and mother


ATTORNEY FOR THE BOARD

Debbie A. Breitbeil, Counsel



INTRODUCTION

The Veteran had unverified active duty from September 1990 to February 1994, and he died in September 2000.  The appellant is the Veteran's surviving son.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2010 administrative decision of the VA Regional Office (RO) in Atlanta, Georgia.  The appellant's notice of disagreement with the decision was purportedly received in August 2010, and the RO issued a statement of the case in December 2010.  The appellant perfected his appeal to the Board by filing a substantive appeal in February 2011.  

In October 2011, the appellant and his mother appeared at the RO in Columbia, South Carolina and testified at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.  

The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC.  


REMAND

In the course of reviewing the appellant's education folder, the Board observes that the statement of the case, which was issued in December 2010, indicates that the appellant's notice of disagreement ("Letter of Disagreement") was received on August 10, 2010.  This document does not appear to be of record, although the Board notes that another statement from the appellant, which was dated August 31, 2010, also indicates his intent to appeal the RO's denial of his application for Chapter 35 DEA benefits.  The appellant's notice of disagreement should be associated with the folder.  

In its May 2010 administrative decision, the RO denied the appellant's claim for DEA benefits because the evidence did not show that the Veteran, his father, had died of a service-connected disability or had a permanent and total (100 percent) service-connected disability at the time of his death.  Later in May 2010, a copy of a July 1998 RO rating decision was submitted to the RO, showing that the Veteran was awarded an increased rating, from 60 percent to 100 percent, for his service-connected head injury with seizure disorder and headaches, effective in March 1998.  Moreover, at the time of the October 2011 Board hearing, the appellant submitted copies of the death certificate of the Veteran (deceased in September 2000) and of a rating decision dated in July 1998, reflecting that the 100 percent rating for the Veteran's service-connected head injury with seizure disorder was continued.  

The RO has not considered the aforementioned evidence added to the education folder, nor has the Veteran's claims file been associated with the education folder.  It appears that this matter should be resolved in an expedient manner once the RO obtains the Veteran's claims file and ascertains the Veteran's service-connected disability rating at the time of his death in September 2000.  

Accordingly, the case is REMANDED for the following action:

1.  Associate with the education folder of the appellant the following:  (a) the appellant's notice of disagreement received on August 10, 2010; and (b) the Veteran's claims file.  

2.  After the above development is completed, review the expanded claims file and adjudicate the claim of whether the appellant is eligible for Chapter 35 DEA benefits.  If the benefit sought remains denied, furnish the appellant a supplemental statement of the case and return the case (with its expanded claims file) to the Board.

The appellant has the right to submit additional evidence and argument on the matter 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 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).



_________________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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 the appellant's appeal.  38 C.F.R. § 20.1100(b) (2012).