Citation Nr: 20038245 Decision Date: 06/04/20 Archive Date: 06/04/20 DOCKET NO. 10-20 569 DATE: June 4, 2020 ORDER Entitlement to basic eligibility to Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35 from September 1, 2009 to August 30, 2016 is denied. FINDING OF FACT From September 1, 2009 to August 30, 2016, the Veteran does not have a permanent and total service-connected disability to warrant DEA benefits. CONCLUSION OF LAW The criteria for entitlement to basic eligibility to DEA under 38 U.S.C. Chapter 35 from September 1, 2009 to August 30, 2016 have not been met. 38 U.S.C. §§ 3500, 3501; 38 C.F.R. §§ 3.807, 21.3020, 21.3021. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from July 1965 to July 1970 and had additional periods of service in the Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran, his wife, and I.R. testified before the undersigned at a January 2012 videoconference hearing. A transcript of this hearing is of record. This case has an extensive procedural history. In the most recent Board remand, in October 2018, the Board remanded the issue of whether the severance of service connection for ventricular tachycardia was proper; the issue of entitlement to service connection for seizure disorder, to include as secondary to ventricular tachycardia; and the issue of whether the severance of entitlement to eligibility to DEA benefits was proper for additional development. Subsequently, in February 2019, the Veteran chose to participate in VA’s Appeals Modernization Act test program, RAMP, the Rapid Appeals Modernization Program, when he submitted his election form to opt-in to RAMP. Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017). In a May 2019 correspondence, VA notified the Veteran that based on his choice to participate in RAMP, VA was withdrawing his appeals for the issue of whether the severance of service connection for ventricular tachycardia was proper and the issue of entitlement to service connection for seizure disorder, to include as secondary to ventricular tachycardia. Finally, VA explained that any issues currently pending would remain in the legacy appeal process. Accordingly, the Veteran’s appeal for entitlement to basic eligibility to DEA benefits continued under the legacy appeal process. 1. Entitlement to basic eligibility to DEA under 38 U.S.C. Chapter 35 from September 1, 2009 to August 30, 2016 As background, the Veteran was originally awarded basic eligibility to DEA benefits in a May 2005 rating decision based on his receipt of a total and permanent service-connected disability, in the form of a total evaluation for his service-connected ventricular tachycardia, effective February 24, 2004. In a subsequent June 2009 rating decision, the RO found that there was clear and unmistakable error in awarding the 100 percent evaluation for ventricular tachycardia as well as in awarding service connection for ventricular tachycardia. As a result, the RO severed service connection for ventricular tachycardia, effective September 1, 2009. Because the Veteran no longer had a total and permanent service-connected disability, the RO also discontinued the Veteran’s basic eligibility to DEA benefits from September 1, 2009. The Veteran appealed that decision. During the pendency of the appeal, in a January 2020 rating decision, the RO granted service connection for Meniere’s disease with hearing impairment and tinnitus and assigned a 100 percent evaluation, effective August 31, 2016. Based on that determination, the RO also established basic eligibility to DEA benefits from August 31, 2016. The Veteran continued to appeal for entitlement to basic eligibility to DEA benefits from September 1, 2009 to August 30, 2016. In the case of a veteran who is alive, the conditions for basic eligibility for DEA benefits include: (1) the veteran’s discharge from service under conditions other than dishonorable; and (2) the veteran has a permanent total service-connected disability. 38 C.F.R. § 3.807(a). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a). A permanent 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). Permanent total disability ratings may not be granted as a result of any incapacity from acute infectious disease, accident, or injury, unless there is present one of the recognized combinations or permanent loss of use of extremities or sight, or the person is in the strict sense permanently helpless or bedridden, or when it is reasonably certain that a subsidence of the acute or temporary symptoms will be followed by irreducible totality of disability by way of residuals. The age of the disabled person may be considered in determining permanence. Id. 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 upon an impairment reasonably certain to continue throughout the life of the disabled person. 38 U.S.C. § 3501(a)(8). From September 1, 2009 to August 30, 2016, the Board finds that the Veteran has not met the basic eligibility requirements which would provide a basis for an award of basic eligibility to DEA. Specifically, the Veteran has not been found to have a permanent and total service-connected disability from September 1, 2009 to August 30, 2016. Without evidence indicating that the Veteran is totally and permanently disabled due to service-connected disability from September 1, 2009 to August 30, 2016, there is no legal basis upon which to find that the basic eligibility requirements for DEA benefits have been met. Where the law and not the evidence is dispositive of the issue before the Board, the claim must be denied because of the absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Journet Shaw, 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.