Citation Nr: 1338347 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 10-08 264A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, of the United States Code. WITNESSES AT HEARING ON APPEAL The appellant and her mother ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty for training from December 1969 to May 1970 and on active duty from November 1990 to May 1991. He had additional active duty for training and inactive duty for training in the Arkansas Nation Guard and retired from this service in August 1991. The appellant is the Veteran's daughter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 administrative action of the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA). The North Little Rock, Arkansas, RO currently has jurisdiction over the appellant's and the Veteran's underlying claims. In November 2010, the appellant and her mother testified before the undersigned Veterans Law Judge sitting at the North Little Rock RO. A transcript of that proceeding has been associated with the appellant's claims file. In November 2011, the Board remanded the appeal to obtain the Veteran's claims file. In January 2013, the Board remanded the appeal pending the resolution of inextricably intertwined disability claims by the Veteran. The case now returns to the Board for final appellate review. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The appellant is the Veteran's daughter and was born in June 1983. She attained the age of 26 in June 2009. 2. The Veteran did not have service-connected disabilities rated as permanent and total prior to the appellant's 26th birthday. CONCLUSION OF LAW The criteria for entitlement to DEA benefits under Chapter 35, Title 38, of the United States Code are not met. 38 U.S.C.A. §§ 3501 (a) (8), 3512 (West 2002); 38 C.F.R. §§ 21.3021, 21.3041(2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). However, where the law as mandated by statute, and not the evidence, is dispositive of a veterans benefit claim, the notice and assistance requirements are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). In this case, there is no reasonable possibility of furthering the claim by additional notice or development. The U.S. Court of Appeals for Veteran Claims (Court) has held that needless remands are to be avoided. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As indicated previously, in November 2011, the Board remanded the appellant's appeal to obtain the Veteran's claims file, which has subsequently been accomplished and is currently associated with the appellant's claims file. In January 2013, the Board remanded the appeal pending the resolution of the Veteran's inextricably intertwined disability claims. In this regard, the Board noted that the appellant's claim is inextricably intertwined with the Veteran's pending claims as her entitlement to DEA benefits is entirely dependent on whether he has a total disability permanent in nature resulting from a service-connected disability. Therefore, before the appellant's claim can be addressed on appeal, the Veteran's appeal and/or claims must be addressed. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Subsequent to the Board's January 2013 remand, all of the Veteran's pending appeal and/or claims have been resolved. Therefore, the Board finds that the AOJ has substantially complied with the November 2011 and January 2013 remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The appellant and her mother also offered testimony before the undersigned Veterans Law Judge at a hearing in November 2010. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) (2013) requires that any Veterans Law Judge who chairs a hearing fulfill two duties to comply with the VCAA. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant, 23 Vet. App. at 488. Here, during the November 2010 hearing, the undersigned Veterans Law Judge noted the issue on appeal, and allowed the appellant to present her case. The undersigned also informed the appellant that her claim for DEA benefits was dependent upon her father's, the Veteran's, benefits in that DEA benefits are available for a child of a Veteran who is rated permanently and totally 100 percent disabled due to a service-connected disability. The undersigned further advised her that, at the time of the hearing, the Veteran's combined rating was 60 percent as of May 2010. Moreover, the Board remanded this case twice in order to ensure that the Veteran's claims file had been associated with the appellant's claims file and that his pending appeal/claims had been fully resolved prior to the adjudication of her DEA claim. The Board accordingly concludes that the notice requirements under Bryant were effectively satisfied. Basic eligibility for DEA benefits under Chapter 35 may be established for a child of a Veteran who has a total disability permanent in nature resulting from a service-connected disability. 38 U.S.C.A. § 3501(a)(1)(A); 38 C.F.R. § 21.3021(a)(1)(iii); see also Erspamer v. Brown, 9 Vet. App. 507 (1996). An eligible child's period of eligibility for educational assistance under chapter 35 generally ends on his or her 26th birthday. See 38 U.S.C. § 3512(a); 38 C.F.R. § 21.3041. If VA first finds that the Veteran/parent has a permanent and total disability after the child's 18th birthday but before the 26th birthday, the period of eligibility ends 8 years after the beginning of the entitlement but in no event after the child's 31st birthday. Id. A birth certificate shows that the appellant is the Veteran's daughter and was born in June 1983. She attained the age of 26 in June 2009 and will attain the age of 31 in June 2014. For the purposes of DEA benefits, the Veteran must have a service-connected permanent and total disability rated as 100 percent based upon impairment reasonably certain to continue throughout the life of the disabled person. 38 U.S.C.A. § 3501 (a) (8); 38 C.F.R. § 21.3021. On the date of receipt of the appellant's claim in October 2008, the Veteran had no service-connected disabilities. In January 2009, prior to the appellant's 26th birthday, the RO granted service connection for the Veteran's following disabilities: lumbosacral strain, rated as 20 percent disabling; and hypertension, rated as 10 percent disabling. The combined rating was 30 percent effective in July 2008. The RO denied service connection for diabetes mellitus and three respiratory claims, including chronic obstructive pulmonary disease (COPD), and deferred a decision on service connection for posttraumatic stress disorder (PTSD). In April 2009, the RO denied service connection for PTSD. In August 2009, the Veteran expressed timely disagreement only with the decision on PTSD and commenced an appeal. After additional development, in January 2010, the RO granted service connection for PTSD and assigned a 30 percent rating, effective in July 2008. Therefore, prior to the appellant's 26th birthday, the Veteran's combined rating was 50 percent but without a permanent and total disability. In October 2010, the RO granted an increased rating for PTSD of 50 percent and a total combined rating of 60 percent, effective in May 2010, after the appellant's 26th birthday. In April 2013, the RO declined to reopen a petition to reopen a claim for service connection for COPD. The appeal period for this decision remains open. However, as the Veteran's petition was received in March 2011, even if service connection is ultimately established, the effective date will not be earlier than the date of receipt of the petition which is after the appellant's 26th birthday. All of the Veteran's claims pending prior to the appellant's 26th birthday have been resolved and failed to establish that the Veteran had a permanent and total service-connected disability in effect the date of the appellant's 26th birthday in June 2009. As the dispositive issue is a matter of law, the "benefit of the doubt" rule is not for application, and the claim must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to DEA benefits under Chapter 35, Title 38, of the United States Code is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs