Citation Nr: 21007762 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 11-14 199 DATE: February 10, 2021 ORDER Entitlement to a permanent and total disability rating for service-connected mood disorder with major depressive episodes is denied. Entitlement to Dependents Educational Assistance benefits under Chapter 35, Title 38, United States Code is denied. FINDINGS OF FACT 1. The Veteran’s mood disorder is not rated totally disabling. 2. The Veteran does not have a permanent and total disability rating. CONCLUSIONS OF LAW 1. The criteria for a permanent total disability rating have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 3.340 (2019). 2. The criteria for Dependents’ Educational Assistance (DEA) have not been met. 38 U.S.C. §§ 1155, 3500, 3501 (2018); 38 C.F.R. §§ 3.807, 21.3021(p) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1988 to July 1989. This matter comes before the Board of Veterans Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Education Office. This matter was previously before the Board in August 2014 and June 2019, at which times the case was remanded for additional evidentiary and due process development. There has been substantial compliance with the Board’s August 2014 and June 2019 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Permanent Total Rating Entitlement to a permanent total disability rating requires that the Veteran’s disability be both permanent and total. The determinations are interrelated but separate, as a total disability may or may not be permanent and vice versa. 38 C.F.R. § 3.340(a)(1). Pursuant to VA regulations, a total disability may be established in two ways. First, 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. 38 C.F.R. § 3.340(a)(1). Second, a total disability may also be assigned where a veteran’s service-connected disabilities are rated 100 percent disabling under the rating schedule. 38 C.F.R. §§ 3.340(a)(2). Permanence of 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). In the instant case, the Veteran is not in receipt of a total rating based on individual unemployability due to service-connected disability. See May 2010 rating decision. Regarding a total schedular rating, in July 2010, the Agency of Original Jurisdiction (AOJ) assigned the Veteran a 100 percent rating for her service-connected mood disorder with major depressive episodes effective in October 2009. The AOJ further determined at that time that since there was a likelihood of improvement, the assigned rating was not considered permanent and was subject to a future review examination. During the pendency of the Veteran’s appeal for DEA benefits, to include consideration of a total permanent rating for her service-connected mood disorder with major depressive episodes, the AOJ, in October 2019, reduced the rating for her mood disorder with major depressive episodes from 100 percent to 70 percent based on an improvement in her psychiatric symptoms. Thus, the Veteran’s service-connected disabilities include: mood disorder, rated at 70 percent; herpes II infection, rated at 10 percent, chondromalacia, right knee rated at 0 percent, and chondromalacia, left knee, rated at 0 percent. The combined rating for these disabilities is 70 percent. Accordingly, as none of the Veteran’s service-connected disabilities are total, or combine to a total rating, the analysis must stop there. That is, the question of the permanence of a total rating cannot be addressed since the Veteran does not have a total rating. 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 and the claim is denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). DEA Benefits Educational assistance is payable to the dependent children or spouses of veterans under certain circumstances. The existence of a permanent and total disability rating for service-connected disability is a requirement for eligibility for DEA benefits. 38U.S.C.§§3500, 3501; 38C.F.R.§§3.807 (a), 21.3021. (Continued on the next page)   It follows that since the Veteran’s disabilities are not permanent and total, she does not meet the criteria for DEA benefits. The law is dispositive of this issue. Sabonis, 6 Vet. App. at 430. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shawkey, Anne M. 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.