Citation Nr: 21021546 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 18-13 118 DATE: April 13, 2021 ORDER Entitlement to Dependents’ Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code (Chapter 35) is denied. FINDING OF FACT Although the Veteran has been awarded a total disability rating of 100 percent for his posttraumatic stress disorder (PTSD) since February 23, 2015, this disability is not permanent in nature and not reasonably certain to continue throughout the Veteran’s lifetime; thus, the Veteran does not have a permanent and total service-connected disability. CONCLUSION OF LAW The criteria for entitlement to DEA benefits under Chapter 35 have not been met. 38 U.S.C. §§ 3500, 3501, 3501; 38 C.F.R. §§ 3.807, 21.3020, 21.3021(a)(3), (c), (p). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from September 2006 to June 2009. The Veteran asserts that he met the basic eligibility to entitlement for DEA benefits under Chapter 35 because his PTSD, which has been rated as 100 percent disabling since February 23, 2015, is a total and permanent service-connected disability because it will not improve in the future. For the purposes of DEA benefits, basic eligibility exists if a veteran was discharged from service under conditions other than dishonorable, and if he has a permanent and total service-connected disability. 38 U.S.C. § 3501; 38 C.F.R. §§ 3.807, 21.3021(p). There are other avenues through which basic eligibility may be granted; however, they involve factors not applicable here, e.g., the death of a veteran or if a veteran is currently on active duty. Id. Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. Diseases and injuries of long-standing that are actually totally incapacitating will be regarded as permanently and totally disabling on the probability that permanent improvement under treatment is remote. The age of the disabled person may be considered in determining permanence. See 38 C.F.R. § 3.340(b). Once permanence is established, a veteran need not undergo further VA examination in order to retain his rating for the permanent disability. See 38 C.F.R. § 3.327(b)(2)(iii). Likewise, P&T means permanent and total “disability,” permanently and totally “disabled,” or permanent and total “rating,” when any of these terms are used in reference to a veteran with a service-connected disability rating determined by VA to be total for the purposes of VA disability compensation where the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 21.3021(p). The facts are not in dispute. The record shows that the Veteran’s tinnitus (rated as 10 percent disabling), hearing loss (rated as noncompensable or zero percent disabling), and PTSD (rated as 100 percent disabling) are the only disabilities that have been service-connected. The record also shows that in a January 2017 rating decision, the Agency of Original Jurisdiction (AOJ) increased the disability rating from 70 percent to 100 percent, effective February 23, 2015, for the Veteran’s PTSD. The rating decision noted that this increase to the maximum, or total, disability rating was based on the VA treatment records and October 2015 and November 2016 VA psychiatric examinations. However, the rating decision further noted that the Veteran’s symptoms were not considered permanent, as the potential for improvement of his service-connected disability existed. Specifically, the AOJ determined that since there was a likelihood of improvement, the assigned 100 percent disability rating was not considered permanent and was subject to future review examinations. Likewise, after the Veteran filed a claim for Chapter 35 benefits on a February 2017 Fully Developed Claim (Compensation) (VA Form 21-526EZ), the AOJ issued the April 2017 rating decision on appeal denying entitlement to DEA benefits as VA determined the Veteran did not have a total service-connected disability, permanent in nature. Specifically, the AOJ noted that although his PTSD was rated as 100 percent disabling, this disability had a routine, future examination scheduled in January 2019. In the May 2017 Notice of Disagreement (NOD), the Veteran asserted that he has been told that his psychiatric disability will not get any better. He contended that even with prescribed medication and counseling, this disability has impacted his activities of daily living and caused his family and marriage to break up. Similarly, the Veteran asserted in the February 2018 Substantive Appeal to the Board (VA Form 9) that this disability caused him to be unable to work and to appropriately interact with others. The record shows that the Veteran underwent a routine VA examination for his PTSD in February 2019, which indicated that his PTSD symptoms had improved. Specifically, following a review of the evidence and an in-person psychiatric examination, the VA examiner determined that the Veteran’s signs and symptoms did not amount to total occupational and social impairment. Rather, the examiner determined that the Veteran’s symptoms amounted to occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood, which corresponds to a 70 percent disability rating for PTSD. See 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. Based on this evidence, in March 2019, the AOJ proposed to reduce the Veteran’s disability rating for this disability from 100 percent to 70 percent disabling as his PTSD had improved. However, in a May 2019 statement, the Veteran asserted that this reduction was not proper and that his PTSD had not improved in severity. Thereafter, he submitted supporting medical evidence, which included a September 2019 Review PTSD Disability Benefits Questionnaire (DBQ), in which the medical professional determined that the Veteran’s PTSD signs and symptoms amounted to total occupational and social impairment following a psychiatric evaluation of the Veteran. The medical professional also remarked that the Veteran “may see improvements in his condition at some point in the future[;] however, at this time that is not the case.” In a September 2019 rating decision, the AOJ determined that the proposed reduction of the Veteran’s PTSD disability rating was not warranted as the evidence, including the September 2019 DBQ report, did not show that this disability had improved. Thus, although the disability rating was continued at 100 percent disabling, the AOJ again determined that since there was a likelihood of improvement in the Veteran’s symptoms, the assigned 100 percent disability rating was not considered permanent and was subject to future review examinations. See 38 C.F.R. § 3.327, 3.344. In fact, the Board notes that the record, including the October 2020 Informal Hearing Presentation from the Veteran’s representative, shows that this disability has a routine, future VA examination scheduled in April 2021. Given this evidence, the Board finds that the basic eligibility requirements for DEA benefits have not been met. Specifically, although the Veteran has been awarded a total disability rating of 100 percent for his PTSD since February 23, 2015, this disability is not permanent in nature and not reasonably certain to continue throughout the Veteran’s lifetime; thus, the Veteran does not have a permanent and total service-connected disability. The Board notes that the Veteran is currently 32 years old, and a review of the record does not show that this disability is reasonably certain to continue to amount to total occupational and social impairment throughout his lifetime. In fact, the February 2019 VA examination report indicated that this disability had improved in severity from February 2015, while the September 2019 DBQ report showed that the evaluator expressly noted that the Veteran may see improvement in this disability in the future. Accordingly, the AOJ has continued to schedule the Veteran for routine, future examinations for this disability, with the next examination occurring in April 2021. Although the Board acknowledges the contentions made by the Veteran and his representative, it is bound by applicable law and regulations when determining a claim for VA benefits. Here, the regulatory criteria governing entitlement to DEA benefits under Chapter 35 are specific, and the Board is bound by them. Pursuant to these criteria, there is no basis upon which to grant DEA benefits as the Veteran’s PTSD disability rating of 100 percent is not considered permanent, and he does not have any other permanent and total service-connected disabilities. Thus, the Board finds that entitlement to DEA benefits under Chapter 35 must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). 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. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hodzic, 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.