Citation Nr: 21072253 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-38 495 DATE: December 2, 2021 ORDER Entitlement to Dependents' Educational Assistance (DEA) benefits is denied. FINDING OF FACT Although the Veteran is currently in receipt of total disability rating, the Veteran's claimed disabilities were granted pursuant to 38 U.S.C. § 1151 and were not incurred or aggravated in service. CONCLUSION OF LAW The criteria for basic eligibility for Dependents' Educational Assistance have not been met. 38 U.S.C. §§ 1151, 3501 (2018); 38 C.F.R. §§ 3.358, 3.361, 3.800, 3.807 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from May 1974 to May 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In his July 2017 VA Form 9 (formal appeal), the Veteran requested a Board hearing. VA scheduled the hearing for August 10, 2021. However, an August 10, 2021 Report of General Information indicates that the Veteran wanted to cancel his hearing. Thus, his hearing request has been withdrawn. Entitlement to DEA benefits is denied. Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code, may be paid to a child or surviving spouse of a veteran who meets certain basic eligibility requirements, including a total disability permanent in nature resulting from a service-connected disability. 38 U.S.C. §§ 3500 and 3501 (2018); 38 C.F.R. § 3.807 (2020). For the purposes of DEA, however, a veteran's service-connected disability must have been the result of active military, naval or air service. 38 C.F.R. § 3.807(b) (2020). Cases where eligibility for service-connected benefits is established under 38 C.F.R. §§ 3.358, 3.361 and 3.800 are not included. See 38 C.F.R. § 3.807(c) (2020). This encompasses claims under 38 U.S.C. § 1151 (Benefits for persons disabled by treatment or vocational rehabilitation). See, e.g., Erspamer v. Brown, 9 Vet. App. 507 (1996) ("the express purpose of DEA under chapter 35 is to provide opportunities for education to children whose education would otherwise be impeded or interrupted by reason of the disability or death of a parent from a disease or injury incurred in or aggravated in the Armed Forces."). Significantly, the regulation itself limits "service connection" to those veterans awarded compensation due to service, and specifically excludes those awarded compensation "as if" service-connected under section 1151. Section 3.807(b) requires that "[s]ervice-connected disability or death must have been the result of active, military, naval, or air service . . . ." Section 3.807(c) specifically stipulates that, for this section, the term "service-connected disability" encompasses combinations of disabilities . . . The standards and criteria for determining service connection, either direct or presumptive, are those applicable to the period of service during which the disability was incurred or aggravated . . . . Cases where eligibility for service-connected benefits is established under §§ 3.358, 3.361, or 3.380 are not included." These regulatory provisions are those that pertain to the award of compensation under § 1151. In this case, the Veteran is currently in receipt of a total disability rating based on individual unemployability due to his various disabilities. He receives compensation pursuant to § 1151 for status post discectomy/laminectomy L4-L5-S1 with degenerative disc disease (back disability), currently evaluated as 60 percent disabling. He is also in receipt of a 30 percent rating for dysthymic disorder associated with his back disability, two 20 percent ratings for radiculopathy of each lower extremity secondary to his back disability, and a 10 percent rating for a scar associated with the surgery for his back disability. Thus, the evidence reflects that he has a total disability rating based on his back disability that resulted from VA treatment, and additional disabilities associated with his back disability. Because the Veteran's back disability is compensated pursuant to 38 U.S.C. § 1151, and his additional service-connected disabilities are associated with his back disability and are not related to service, he does not meet the basic eligibility criteria of total service-connected disability for which Chapter 35 benefits may be granted. See 38 C.F.R. § 3.807(c) (2020). Because the law, and not the facts, is dispositive of the issue, the Veteran has failed to state a claim upon which relief may be granted, and, as a matter of law, the claim must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). LESLEY A.REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Roya Bahrami, 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.