Citation Nr: 21067340
Decision Date: 11/04/21	Archive Date: 11/03/21

DOCKET NO. 17-14 903
DATE: November 4, 2021

ORDER

Entitlement to educational assistance under Chapter 35, Title 38 United States Code, also known as the Dependents Educational Assistance (DEA) benefits, is denied.

 

FINDING OF FACT

The Veteran did not die from a service-connected disability, nor was a permanent total service-connected disability in existence at the time of his death. 

CONCLUSION OF LAW

The criteria for Chapter 35 DEA benefits are not met.  38 U.S.C. §§ 3500, 3501; 38 C.F.R. §§ 3.807, 21.3021.  

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from May 1951 to May 1953.  The Veteran passed away in May 1985.  The appellant is his surviving spouse.  

The case is on appeal from a November 2016 VA decision.  

In a March 2017 VA Form 9, the appellant requested a Board hearing.  In April 2021, the Board notified the appellant that a virtual hearing had been scheduled for September 2021.  The appellant was deemed a no-show to her hearing.  To date, the appellant has not requested that her hearing be rescheduled.  As such, the Board finds that the Veteran's hearing request is deemed withdrawn.  38 C.F.R. § 20.704(d).  

In a July 2017 statement, Dr. E.K., the appellant's attending physician, requested her case to be advanced on the docket as the appellant is 84 years old and seriously ill.  The foregoing statements can be liberally as the appellant's motion for advancement on the docket and thus, the appeal has been advanced on the docket.  38 U.S.C. § 7107(b); 38 C.F.R. § 20.800(c).  

The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).    

Entitlement to DEA benefits.  

Legal Criteria

For the purposes of educational assistance under 38 U.S.C. Chapter 35, the child or surviving spouse of a Veteran will have basic eligibility if the following conditions are met: (1) The Veteran was discharged from service under conditions other than dishonorable, or died in service; and, (2) the Veteran has a permanent total service-connected disability; or, (3) a permanent total service-connected disability was in existence at the date of the Veteran's death; or, (4) the Veteran died as a result of a service-connected disability.  38 U.S.C. §§ 3501, 3510; 38 C.F.R. §§ 3.807(a), 21.3021.  

In sum, the United States Congress established the provisions set forth above for the purpose of providing opportunities for education to the child or surviving spouses of Veterans meeting at least one of the required criteria listed above.  See 38 U.S.C. § 3500.    

Analysis

The appellant contends, in essence, that the Veteran's active military service alone is sufficient to establish her eligibility to DEA benefits.  

A review of the evidence shows that the Veteran died in May 1985.  A death certificate of record lists the cause of his death as probable arteriosclerotic cardiovascular disease.  The Board has reviewed the VA claims file in connection with this appeal and notes that the evidence fails to show that the Veteran either died in service; died from a service-connected disability; or died while having a disability evaluated as total and permanent in nature resulting from a service-connected disability.  Additionally, the Veteran did not have a permanent a total disability evaluation due to a service-connected disability at the time of his death.  In fact, the Veteran was not service connected for any disability during his lifetime.  In sum, the evidence fails to show that the required criteria to establish eligibility to DEA benefits are met.  

The Board acknowledges the appellant's claim and her supporting statement indicating that the Veteran's active military service is sufficient to establish her eligibility to DEA benefits.  The Board also acknowledges the Veteran's honorable active service in the U.S. Army during the Korean War.  However, the Board is bound by the applicable law and regulations.  In this case, there is, unfortunately, no legal basis for granting the benefit sought.  The preponderance of the evidence is against the claim as the criteria for DEA benefits are not met.  As such, entitlement to DEA benefits is not warranted.

 

 

RYAN T. KESSEL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	William Pagan, Associate 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.