Citation Nr: A21020069 Decision Date: 12/16/21 Archive Date: 12/15/21 DOCKET NO. 200819-112153 DATE: December 16, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period prior to November 24, 2017 is dismissed. Entitlement to an effective date earlier than November 24, 2017 for Dependents' Educational Assistance (DEA) under 38 U.S.C. § 35 is denied. FINDINGS OF FACT 1. On November 8, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through his authorized representative, that a withdrawal of the issue of entitlement to an earlier effective date for a TDIU is requested. 2. Prior to November 24, 2017, the Veteran did not have a permanent and total service-connected disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran, through his authorized representative, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for an effective date earlier than November 24, 2017 for DEA have not been met. 38 U.S.C. §§ 1155, 3501, 3510, 5107, 5113; 38 C.F.R. §§ 3.340, 3.341, 3.400, 3.807(a), 4.3. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1975 to June 1981 and from April 1982 to December 1995. The rating decision on appeal was issued in June 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the August 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran initially requested the hearing option and identified the issues of entitlement to earlier effective dates for a TDIU and DEA. In September 2021, the Veteran withdrew the hearing request; therefore, the Board may only consider the evidence of record at the time of the June 2020 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative within 90 days following receipt of the withdrawal. 38 C.F.R. § 20.302(b). Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to a TDIU for the period prior to November 24, 2017 for a TDIU is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran, through his authorized representative, has withdrawn the issue of entitlement to an effective date earlier than November 24, 2017 for a TDIU in a November 2021 correspondence. This correspondence contained the name of the Veteran, the applicable VA file number, and a statement that this specific issue was to be withdrawn. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. 2. Entitlement to an effective date earlier than November 24, 2017 for DEA under 38 U.S.C. § 35 is denied. The Veteran is seeking an effective date prior to November 24, 2017 for basic eligibility to DEA under 38 U.S.C. § 35. Except as provided in subsections (b) and (c), effective dates relating to awards under Chapter 35 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation. 38 U.S.C. § 5113. Subsection (b) provides that when determining the effective date of an award under Chapter 35 for an individual described in paragraph (b)(2) of 38 U.S.C. § 5113, based on an original claim, VA may consider the individual's application as having been filed on the eligibility date of the individual if that eligibility date is more than one year before the date of the initial rating decision. For these purposes, "eligibility date" means the date on which the individual became an eligible person as defined by 38 U.S.C. § 5113 (a)(1), and "initial rating decision" means a decision by VA that establishes the veteran's total disability as permanent in nature. 38 U.S.C. § 5113 (b)(3). In the case of a veteran who is alive, the conditions for basic eligibility to DEA 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). In a June 2020 rating decision, the AOJ awarded the Veteran basic eligibility to DEA under 38 U.S.C. § 35, effective November 24, 2017, based upon the determination that he had a permanent and total service-connected disability by virtue of his TDIU. Based on a careful review of the evidence, the Board must find that the Veteran has not met the basic eligibility requirements, which would provide a basis for an award of DEA, prior to November 24, 2017. Specifically, the Veteran has not been found to have a permanent and total service-connected disability. The evidence does not show that the Veteran has a service-connected disability rated as totally disabling prior to November 24, 2017: none of his service-connected disabilities were found to be 100 percent disabling and his multiple service-connected disabilities had a combined evaluation of 80 percent. Further, the Veteran has not been granted a TDIU prior to November 24, 2017. Without evidence indicating that the Veteran is totally and permanently disabled due to his service-connected disability prior to November 24, 2017, there is no basis upon which the Board can find that the basic eligibility requirements for DEA benefits have been met prior to November 24, 2017. Although the Board is sympathetic to the appellant's claim, it is bound by the applicable law and regulations. However, there is no legal basis for granting the benefit requested by the Veteran. The Veteran does not have a permanent and total service-connected disability, which is a basic requirement for entitlement to DEA benefits under 38 U.S.C. § 35, prior to November 24, 2017. Thus, the claim must be denied as a matter of law. 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. See Sabonis v. Brown, 6 Vet. App. 426 (1994). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Ko, 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.