Citation Nr: 1336868 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 13-13 427 ) 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. WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD J.M. Seay, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to March 1970. The record indicates that the Veteran died in November 2001. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In August 2013, the Veteran testified during a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The appellant clarified that she wished to proceed without a representative. At the time of the August 2013 hearing, additional evidence was received and the appellant submitted a written waiver of initial consideration by the Agency of Original Jurisdiction. This evidence is accepted for inclusion in the record on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The appellant claims entitlement to DEA benefits. She explained that she agreed that the Veteran's death was not due to a service-connected disability. However, she stated that the Veteran was rated as permanently and totally disabled at the time of his death. 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. A surviving spouse of a Veteran is eligible to receive DEA if the Veteran who died of a service-connected disability or died while totally and permanently disabled from a service-connected disability. 38 U.S.C.A. §§ 3501; 3510. The term "total disability permanent in nature" for the purpose of DEA benefits means any disability rated total for the purposes of disability compensation which is based on an impairment reasonably certain to continue throughout the life of the disabled person. 38 U.S.C.A. § 3501(a)(8); 38 C.F.R. § 3.340. In this case, the appellant was denied eligibility for DEA benefits on the basis that the Veteran did not die of a service-connected disability and he was not rated as permanently and totally disabled at the time of his death. The rating decision and Statement of the Case indicated review of the Veteran's compensation and pension electronic file. However, it is unclear as to what records were reviewed. In fact, the current evidence before the Board is not sufficient to determine whether the Veteran was totally and permanently disabled at the time of his death. While the evidence suggests that the Veteran may have been in receipt of a 100 percent disability evaluation, this is not adequate to reach a determination that he was totally and permanently disabled at the time of his death. See 38 U.S.C.A. § 3501(a)(8) (The term "total disability permanent in nature" means any disability rated total for the purposes of disability compensation which is based upon an impairment reasonably certain to continue throughout the life of the disabled person"). Therefore, the Board must remand to obtain the Veteran's claims folder prior to adjudication of the appellant's claim. Upon receipt of the claims folder, the appellant's claim must be readjudicated based on the entire evidence of record, to include the claims folder. Finally, the Board observes that while the appellant indicated that she was the Veteran's spouse in numerous statements, there is no marriage certificate associated with the record. The appellant indicated that the information was already sent to VA. Rating decisions issued in August 2012 and May 2013 by the Philadelphia RO indicated that the RO did have the marriage certificate. On remand, the RO/AMC should review the claims folder to ensure that the marriage certificate is of record. Remand is necessary because the RO did not have the opportunity to review the claims file in the first instance. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain the Veteran's claims folder and associate it with the education folder. All attempts to locate the claim folder and any responses received should be documented. The Board notes that it appears that the claims folder may currently reside with the Philadelphia RO. 2. Review all evidence to ensure that a marriage certificate is of record. If not, notify the appellant accordingly and request that she submit a marriage certificate. 3. After completing the above action, and any additional development deemed necessary, the RO/AMC must readjudicate the appellant's claim on appeal based on the entire record. If the benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the appellant. After the appellant has been afforded an adequate opportunity to respond, the appeal must be returned to the Board for appellate review, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals 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). _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals 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 your appeal. 38 C.F.R. § 20.1100(b) (2012).