Citation Nr: 20032263 Decision Date: 05/07/20 Archive Date: 05/07/20 DOCKET NO. 16-29 515 DATE: May 7, 2020 ORDER Entitlement to Dependents’ Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code (Chapter 35) is denied. FINDING OF FACT Although the Veteran has been awarded a total disability rating based on individual unemployability (TDIU) due to all of his service-connected disabilities, his posttraumatic stress disorder (PTSD) and post-traumatic headaches, which are two of the service-connected disabilities of upon which the grant of a TDIU rating was based, were not permanent in nature and were not reasonably certain to continue throughout the Veteran’s lifetime; thus, the Veteran does not have a permanent and total service-connected disability. CONCLUSION OF LAW The criteria for entitlement to DEA benefits under Chapter 35 have not been met. 38 U.S.C. §§ 3500, 3501, 3501; 38 C.F.R. §§ 3.807, 21.3020, 21.3021(a)(3), (c), (p). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from November 1997 to November 2001, from January 2003 to January 2004, and from March 2007 to July 2007. The appellant is the Veteran’s wife. The appellant contends that she is entitled to DEA benefits because the Veteran has a combined disability rating of 90 percent and has been determined to be 100 percent individually unemployable. Specifically, she contended in the May 2016 notice of disagreement (NOD) that the Veteran cannot work and that he had not exhausted his VA education benefits. She stated that she was the sole breadwinner for her family and that she wanted to finish her bachelor’s degree, with the assistance of DEA benefits, in order to find better employment opportunities. Basic eligibility for Chapter 35 benefits is established in one of several ways, including being the spouse of a Veteran who has a total and permanent disability rating from a service-connected disability. See 38 U.S.C. § 3501; 38 C.F.R. §§ 3.807, 21.3021(a)(3)(i). Permanence of total disability exists when such impairment is reasonably certain to continue throughout the life of the disabled person. Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. The age of the disabled person may be considered in determining permanence. 38 C.F.R. § 3.340(b). Once permanence is established, a veteran need not undergo further VA examination in order to retain his rating for the permanent disability. See 38 C.F.R. § 3.327(b)(2)(iii). Likewise, P&T means permanent and total “disability,” permanently and totally “disabled,” or permanent and total “rating,” when any of these terms are used in reference to a veteran with a service-connected disability rating determined by VA to be total for the purposes of VA disability compensation where the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 21.3021(p). The facts are not in dispute. The record shows that in an October 2015 rating decision, the Agency of Original Jurisdiction (AOJ) granted entitlement to a TDIU rating, effective January 20, 2015, based on all of the Veteran’s service-connected disabilities. Service connection was in effect at the time for PTSD (rated as 70 percent disabling), right knee patellofemoral syndrome (rated as 10 percent disabling), tinnitus (rated as 10 percent disabling), traumatic brain injury (TBI) (rated as 40 percent disabling prior to June 29, 2015, and as 10 percent disabling thereafter), left foot heel spur and planter fasciitis (rated as noncompensable), right foot bone spur (rated as noncompensable), carpal tunnel of the right upper extremity (rated as noncompensable), and post-traumatic headaches (rated as 50 percent disabling). The combined disability rating for all of the Veteran’s service-connected disabilities at the time that the TDIU rating was granted was 90 percent. The record shows that the appellant filed a Dependents Application for Education Benefits (VA Form 22-5490) in February 2016 in which she applied to use DEA benefits stemming from the Veteran to pursue a course of study beginning in April 2016. In a February 2016 decision, the AOJ denied her claim of entitlement to DEA benefits because the evidence did not show that the Veteran had a permanent and total service-connected disability. In addition to the contentions noted above, the appellant stated in the May 2016 NOD that although the Veteran receives VA disability benefits, they are barely enough to live on. She stated that she wanted to return to school in order to finish her bachelor’s degree, then move on to get a master’s degree, and to possibly attain a doctorate. She stated that she was the sole breadwinner of her family, including her 12-year-old stepson. She also noted that she was unable to find work that offered a reasonable wage and fulfilled her family’s needs because she lacked a degree. She stated that receiving education benefits would allow her to return to school without the need to work at the same time. She noted that the Veteran had not exhausted his education benefits, but he could not attend school and finish his degree. She made very similar contentions in the June 2016 Substantive Appeal to the Board (VA Form 9). Given this evidence, the Board finds that the basic eligibility requirements for DEA benefits have not been met. Specifically, although the Veteran was granted a TDIU rating due to all of his service-connected disabilities, he did not have a permanent and total service-connected disability. The AOJ found that the service-connected PTSD and post-traumatic headaches were not permanent in nature and not reasonably certain to continue throughout the Veteran’s lifetime at the time the TDIU rating was granted. A review of the record, including the October 2015 rating decision that granted entitlement to a TDIU rating, shows that although the Veteran was found to be unable to secure or follow a substantially gainful occupation as a result of all of his service-connected disabilities, the AOJ did not consider PTSD and post-traumatic headaches as permanent disabilities. The code sheet associated with this rating decision showed that although the other service-connected disabilities were considered static disabilities, PTSD and post-traumatic headaches were subject to future examinations. The October 2015 rating decision code sheet noted that a future examination was scheduled for the post-traumatic headaches in February 2017 and a future examination for PTSD was scheduled in August 2020. Furthermore, a March 2017 VA letter telling the Veteran that he was scheduled for a VA examination for the post-traumatic headaches disability noted that the examination was needed to evaluate this disability since it may have improved or worsened since his last examination. In fact, because an April 2017 VA examination showed significant improvement in the symptoms associated with this disability, the AOJ reduced the disability rating from 50 percent disabling to noncompensable (zero percent), effective April 4, 2017, in an April 2017 rating decision. The rating decision also showed that the Veteran’s TDIU rating was still in effect, but his combined disability rating was reduced from 90 percent to 80 percent, effective April 4, 2017, due to the reduction in the disability rating for the post-traumatic headaches. The rating code sheet associated with the April 2017 rating decision showed that VA determined that the post-traumatic headaches were now considered a static disability; however, this code sheet showed that the Veteran’s PTSD was not considered to be a permanent disability, as he has a future examination scheduled for August 2020. Overall, the record indicates that the probability of permanent improvement under treatment is not remote for the Veteran’s PTSD. 38 C.F.R. § 3.340(b). Thus, because this disability is subject to future examinations, the Veteran’s TDIU rating is also not considered permanent. Although the Board is sympathetic to the appellant’s contentions, it is bound by applicable law and regulations when determining a claim for VA benefits. Here, the regulatory criteria governing entitlement to DEA benefits under Chapter 35 are specific, and the Board is bound by them. Pursuant to these criteria, there is no basis upon which to grant DEA benefits as the Veteran’s TDIU rating is not considered permanent, and he does not have any other permanent and total service-connected disability. Thus, the Board finds that entitlement to DEA benefits under Chapter 35 must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Where the law, rather than the facts, is dispositive, the benefit of the doubt provisions as set forth in 38 U.S.C. § 5107(b) do not apply. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hodzic, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.