Citation Nr: 1336379	
Decision Date: 11/07/13    Archive Date: 11/13/13

DOCKET NO.  04-12 077	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and her son



ATTORNEY FOR THE BOARD

A. G. Alderman, Counsel


INTRODUCTION

The Veteran had active duty from June 1963 to April 1967 and from November 1990 to April 1991.  He served in the Republic of Vietnam during the Vietnam Era and in the Southwest Asia theatre of operations during the Persian Gulf War.  He also had service in the Air Force Reserves.  He died in May 2002, and the appellant is his surviving spouse.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In January 2005, the appellant and her son testified in Washington, D.C., before the undersigned Acting Veterans Law Judge.  A copy of the transcript of that hearing is in the claims file.

In April 2005, the Board determined that the Veteran had filed claims for service connection for colon metastatic to the liver and lungs, stomach problems, pain in both legs, pain in joints, esophagus rupture, back injury, and headaches in March 2002, approximately three months prior to his death, and noted that the appellant could potentially be entitled to monetary compensation for accrued benefits under the payment rules of 38 U.S.C.A. § 5111 and 38 C.F.R. § 3.31.  The Board awarded service connection for irritable bowel syndrome, claimed as stomach problems, on an accrued basis.  The Board remanded the other matters of entitlement to service connection for progressive metastatic colon cancer with liver and pulmonary involvement, pain in both legs, pain in joints, esophagus rupture, back injury, and headaches, for accrued benefits purposes, entitlement to service connection for the cause of the Veteran's death, and entitlement to Dependents' Educational Assistance under 38 U.S.C. Chapter 35, to the RO (via the Appeals Management Center (AMC)), for additional development.

In August 2012, the Board granted service connection for accrued benefits purposes the following disabilities: degenerative arthritis in the lumbar spine (joint pain), degenerative arthritis with torn meniscus and Baker's cysts in both knees (joint pain and leg pain), gastroesophageal reflux disease (GERD) (residuals of esophagus rupture), and sinus-related headaches.  The Board denied service connection for accrued benefits purposes colon cancer with metastases and denied service connection for the Veteran's cause of death.  The Board remanded the claim for Chapter 35 education benefits to allow the RO to assign disability ratings for the disabilities granted on appeal.  All disabilities have been rated and the issue of entitlement to Chapter 35 benefits is before the Board for adjudication.


FINDING OF FACT

The Veteran did not have a permanent total service-connected disability during his lifetime or at the time of his death, and the cause of the Veteran's death is not service-connected.


CONCLUSION OF LAW

The criteria for basic eligibility for Chapter 35 educational benefits have not been met.  38 U.S.C.A. §§ 3500, 3501, 3510, 3512, 5103A, 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.807, 21.3020, 21.3021 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.  The notification requirements are referred to as Type One, Type Two, and Type Three, respectively.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

It does not appear to the Board that the VCAA is applicable to the type of claim at hand, which involves a claim not found in Chapter 51.  See Barger v. Principi, 16 Vet. App. 132 (2002) (holding that the VCAA, with its expanded duties, is not applicable to cases involving the waiver of recovery of overpayment claims, pointing out that the statute at issue in such cases was not found in Title 38, United States Code, Chapter 51 (i.e., the laws changed by VCAA)).

In any event, assuming all favorable facts to the appellant as true, the Board must deny the claim as a matter of law.  As such, no further notice or assistance would be required to the appellant.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit).

Similarly, the appellant testified before the undersigned in January 2005.  The hearing focused on establishing service connection claims for accrued benefits, and the hearing testimony resulted in additional Board development of multiple claims.  The issue on appeal is a downstream claim dependent upon the service connection awards and the appellant had been aware of those criteria.  As this claim must be denied as a matter of law, the Board finds that the appellant has not been prejudiced by any deficiencies in the conduct of the hearing.  See Bryant v. Shinseki, 23 Vet. App. 488 (2010) (holding that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or VLJ who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked). 

DEA Benefits

The child or a surviving spouse of a veteran is eligible for educational assistance benefits under 38 U.S.C.A., Chapter 35 where the Veteran was (1) discharged from service under conditions other than dishonorable, or died in service; or (2) has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the Veteran's death; or (4) died as a result of a service-connected disability.  38 U.S.C.A. §§ 3500, 3501, 3510 (West 2002); 38 C.F.R. § 3.807(a) (2013).

In this case, the Veteran had an honorable discharge.  However, the Veteran did not have a permanent total service-connected disability during his lifetime or at the time of his death.  At most, he was awarded service connection posthumously for his lumbar spine, bilateral knees, GERD, and headaches.  His combined rating was 40 percent, effective March 2002.  He died in May 2002.  The cause of his death is not service-connected.  Accordingly, the criteria for eligibility for DEA benefits are not met, and neither the appellant nor the appellant's children are entitled to such benefits.

In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine.  38 U.S.C.A. 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1991).  However, as the preponderance of the competent and probative evidence is against the appellant's claim for DEA benefits under the provisions of 38 U.S.C.A., Chapter 35, the doctrine is not applicable in this case.


ORDER

Entitlement to Dependents' Educational Assistance benefits under 38 U.S.C.A., Chapter 35 is denied.



____________________________________________
T. MAINELLI
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs