Citation Nr: 1330871 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 07-37 186 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Basic eligibility for Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from January 1968 to January 1970. He served in the Republic of Vietnam from July 1969 to January 1970. The Veteran passed away on August [redacted], 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The issue currently on appeal was previously remanded by the Board in September 2011 for further evidentiary development. FINDINGS OF FACT 1. The Veteran was discharged from military service under honorable conditions. 2. The appellant is the surviving spouse of the Veteran. 3. The Veteran passed away on August [redacted], 2006, due to progressive renal cell cancer. 4. The Veteran was not service-connected for any disabilities at the time of his death. CONCLUSION OF LAW Eligibility for DEA benefits under 38 U.S.C., Chapter 35, is not established. 38 U.S.C.A. §§ 3500, 3501(a)(1) (West 2002); 38 C.F.R. §§ 3.807, 21.3020, 21.3021 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Survivors' and Dependents' Educational Assistance (DEA), under Chapter 35, Title 38, of the United States Code, is a program of education or special restorative training that may be authorized for an eligible person, such as a surviving spouse, if the applicable criteria are met. See 38 U.S.C.A. §§ 3500, 3501; 38 C.F.R. §§ 21.3020, 21.3021. Basic eligibility for certification of DEA exists if the Veteran was discharged from service under conditions other than dishonorable, or died in service, and either (1) has a permanent total service-connected disability, or (2) a permanent total service-connected disability was in existence at the date of the veteran's death, or (3) died as a result of a service-connected disability, or, if a service member (4) is on active duty as a member of the Armed Forces and, for a period of more than 90 days, has been listed by VA concerned as missing in action, captured in the line of duty by a hostile force, or forcibly detained or interned in the line of duty by a foreign government of power. 38 C.F.R. § 3.807. The record reflects that the Veteran was discharged under honorable conditions and that the appellant is the surviving spouse of the Veteran. However, at the time of the Veteran's death, he did not have a permanent total service-connected disability (or any service-connected disability), nor has service connected been established for the cause of his death. He was also not on active duty at the time of his death and he was not in receipt of a permanent total service-connected disability. As such, DEA benefits cannot be established. The Board recognizes that a private physician with the initials S.J.T. wrote a statement in which he suggested it was "reasonable to consider exposure to Agent Orange as a possible inciting factor for many tumors . . . ." However, this statement is highly speculative and offers no rationale or actual relationship between Agent Orange and the Veteran's renal cancer. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may not" and is too speculative to establish medical nexus); see also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative). See also Libertine v. Brown, 9 Vet. App. 521, 523 (1996); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); see also 38 C.F.R. § 3.102 (describing the concept of reasonable doubt in adjudicating service connection claims as not being one arising from pure speculation or remote possibility). Furthermore, this evidence was previously considered by the Board in September 2011, and it was determined that the appellant was not entitled to service connection, for purposes of accrued benefits, for any claimed disability. In Sabonis v. Brown, 6 Vet. App. 426 (1994), the United States Court of Appeals for Veterans Claims (Court) held that in cases in which the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Eligibility for DEA benefits, accordingly, is denied as a matter of law. No further notice or assistance is required. See 38 C.F.R. § 3.159(d). ORDER Eligibility for Dependents' Educational Assistance under 38 U.S.C. Chapter 35 is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs