Citation Nr: 18156930
Decision Date: 12/11/18	Archive Date: 12/11/18

DOCKET NO. 16-41 834
DATE:	December 11, 2018
ORDER
Entitlement to Dependent’s Educational Assistance (DEA) benefits under the provisions of 38 U.S.C. Chapter 35 is denied.
FINDING OF FACT
The Veteran does not have a permanent and total service-connected disability.  
CONCLUSION OF LAW
The criteria for basic eligibility to DEA benefits have not been met.  38 U.S.C. §§ 3500, 3501, 5107 (2012); 38 C.F.R. §§ 3.340, 3.807, 21.3021 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active service from September 1970 to June 1992.
Entitlement to Dependent's Educational Assistance (DEA) under the provisions of 38 U.S.C. Chapter 35.
The veteran contends that his dependents should be found eligible for Dependent’s Educational Assistance (DEA) benefits.  
Educational assistance is payable to the dependent children or spouses of veterans under certain circumstances; the existence of a permanent and total disability rating for service-connected disability is a requirement for eligibility for DEA benefits.  38 U.S.C. §§ 3500, 3501 (2012); 38 C.F.R. §§ 3.807 (a), 21.3021 (2017).  A total disability may be assigned where a veteran’s service-connected disabilities are rated as 100 percent disabling under the rating schedule, or if the veteran is unemployable due to service-connected disabilities.  38 C.F.R. §§ 3.340, 3.341 (2017).  Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person.  38 C.F.R. § 3.340(b).
The Board notes that a September 2014 rating decision granted an increased 20 percent disability rating for the Veteran’s service-connected lumbar spine disability, effective March 27, 2014.  As a result, the Veteran is in receipt of a combined 100 percent disability rating from March 27, 2014 for all of his service-connected disabilities.  Significantly, however, the rating official at that time noted that a future review examination would be scheduled for the Veteran’s service-connected lumbar spine disability because, upon VA examination in August 2014, the VA examiner noted there was some doubt regarding range-of-motion testing results.  As such, VA found that although the Veteran had a total schedular combined disability rating, entitlement to Chapter 35 DEA benefits was not warranted at that time, as there was potential for a change in the Veteran’s overall combined disability rating.
Indeed, upon subsequent VA lumbar spine examination in December 2017, improvement was shown in the Veteran’s relevant range of motion (as compared to the August 2014 VA examination), and a December 2017 rating decision proposed to reduce the disability rating for the Veteran’s lumbar spine disability from 20 percent to 10 percent.  Notably, the proposed reduction of the Veteran’s lumbar spine disability would result in the reduction in his combined disability rating from 100 percent to 90 percent.  As such, entitlement to DEA could not be established on that basis, if the reduction is effectuated.  
The Veteran has asserted that reexamination is not warranted, as he is over 55 years of age; however, the Board notes that reexamination is specifically warranted in the case of veterans over the age of 55 “under unusual circumstances.”  38 C.F.R. § 3.327(b)(2)(iv) (2017).  As discussed above, following the unusual range of motion test results of the August 2014 VA examination, as described by a medical professional, VA found that a future examination was warranted.  
In sum, as the Veteran has not been assigned a permanent and total disability rating for any period on appeal, the criteria for basic eligibility for Chapter 35 DEA benefits are not satisfied.  As such, the claim is denied as a matter of law.  
 
A. P. SIMPSON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	D. Chad Johnson, Counsel