Citation Nr: 21023020 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 13-35 038 DATE: April 19, 2021 ORDER Entitlement to basic eligibility to Dependents’ Educational Assistance (DEA) under 38 U.S.C. Chapter 35 is denied. FINDING OF FACT The Veteran does not have a permanent and total service-connected disability. CONCLUSION OF LAW The criteria for entitlement to basic eligibility to DEA under 38 U.S.C. Chapter 35 have not been met. 38 U.S.C. §§ 3501, 3512; 38 C.F.R. §§ 3.807, 21.3021, 21.3040, 21.3041. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from March 1968 to March 1970. The appellant is the Veteran’s daughter. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied the appellant’s claim for entitlement to DEA benefits. In June 2015, the Board remanded the issue on appeal for additional development. As the actions specified in the remand have been substantially completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act, 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. Regulations relating to notice and assistance, specific to education benefits, are found at 38 C.F.R. §§ 21.1031, 21.1032. The Board notes that the appellant has been notified of the reasons for the denial of her claim and has been afforded full opportunity to present evidence and argument with respect to the claim. The Board finds the duty to notify and assist has been met. Analysis 1. Entitlement to basic eligibility to DEA under 38 U.S.C. Chapter 35 Basic eligibility for Chapter 35 benefits can be established in several ways, including being the child of a veteran who has a total disability permanent in nature resulting from a service-connected disability. See 38 U.S.C. § 3501(a)(1)(A)(ii); 38 C.F.R. § 3.807(a)(3)(i). 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 this case, the appellant’s application for DEA benefits was denied in a July 2013 VA decision, because the RO found that the Veteran did not have a total and permanent service-connected disability. The appellant did not disagree with the RO’s finding; however, she appealed her claim, because the Veteran had a pending appeal for an increased rating for his service-connected posttraumatic stress disorder (PTSD), in which he was seeking a total disability rating for PTSD. Before the appellant’s claim could be considered, the Veteran’s appeal for an increased rating for PTSD had to be adjudicated. Additionally, during the pendency of the appeal, in March 2020, the Veteran filed a claim for a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). In a May 2020 rating decision, the RO found that the Veteran was capable of gainful employment and denied his claim for entitlement to a TDIU. In a July 2020 rating decision, the RO found that the Veteran’s treatment records continued to show that the Veteran’s PTSD most closely approximated the severity of a 70 percent disability evaluation. The Veteran has multiple service-connected disabilities with a combined evaluation of 90 percent. 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. 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; his PTSD was found to be no more than 70 percent disabling, and his multiple service-connected disabilities have a combined evaluation of 90 percent. As noted above, the Veteran was denied entitlement to a TDIU. Without evidence indicating that the Veteran is totally and permanently disabled due to his service-connected disability, there is no basis upon which the Board can find that the basic eligibility requirements for DEA benefits have been met. 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 appellant. 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. Chapter 35. 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 Journet Shaw, 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.