Citation Nr: 21023704 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-50 454 DATE: April 21, 2021 REMANDED Entitlement to basic eligibility to Dependents’ Educational Assistance (DEA) under 38 U.S.C. Chapter 35, to include a finding of a permanent and total disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from January 1997 to October 2014. The appellant is the Veteran’s child. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 decision by the Department of Veterans Affairs (VA) Regional Office (RO). Most recently, the Board remanded the issue on appeal for additional development in September 2020. 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). 1. Entitlement to basic eligibility to DEA under 38 U.S.C. Chapter 35, to include a finding of a permanent and total disability, is remanded. The appellant is seeking basic eligibility to DEA benefits. Basic eligibility for DEA benefits under Chapter 35 is established in one of several ways, including being a child of a veteran who had a permanent and total disability evaluation. 38 U.S.C. Chapter 35; 38 C.F.R. § 21.3021(a)(1). 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). 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. Id. The age of the disabled person may be considered in determining permanence. Id. Once permanence is established, a veteran need not undergo further VA examination in order to retain her rating for the permanent disability. See 38 C.F.R. § 3.327(b)(2)(iii). At issue is whether the Veteran has a permanent and total service-connected disability. The Veteran currently has a 100 percent disability rating for his service-connected epilepsy with arachnoid cyst; however, in a March 2017 rating decision, the RO found that the Veteran’s disability was not a permanent disability, because there was a likelihood of improvement and was subject to a future review examination. Because the RO did not explain why it found that the Veteran’s service-connected epilepsy with arachnoid cyst was likely to improve, the Board remanded the appellant’s claim for a medical opinion regarding the permanence of the severity of the service-connected epilepsy. In a November 2020 VA opinion, the VA examiner found that the Veteran’s epilepsy with arachnoid cyst is a “medical condition that he will have for the remainder of his life but is management [sic] with medications in which the physical manifestations of the condition are controlled.” The VA examiner found that the Veteran had not had a documented or witnessed seizure since 2015. On that basis, the VA examiner determined that “[w]ithout documented or witnessed seizures reported currently, this would not be considered a permanent and totally disabling condition.” Overall, the VA examiner concluded that the “probability of improvement under treatment is not remote, it is improved currently with medication management.” However, a review of the record reveals that VA treatment records in 2019 and 2020 document that the Veteran had seizures in March 2018 and February 2019. Moreover, in an August 2019 VA Neurology Note submitted by the Veteran, the Veteran’s VA treating neurologist described the Veteran’s seizures as a “permanent condition, and the only reason the seizure frequency is better now is because of the medications he is taking.” The VA treating neurologist also explained that the Veteran would have to remain on anti-seizure medications “indefinitely.” Given these clinical findings, the November 2020 VA examiner’s suggestion that recent seizures may change the analysis of the permanent nature of the Veteran’s epilepsy, and the apparent finding that the November 2020 VA examiner did not have the benefit of the Veteran’s complete medical records to review, the Board finds that another remand is required to obtain an addendum medical opinion. Furthermore, the Board also finds that the record is missing the Veteran’s complete VA treatment records from March 2017 to March 2020. Because these VA treatment records may provide information that may substantiate the appellant’s claim for eligibility to DEA benefits, a remand to associate these records with the Veteran’s claims file is required. The matter is REMANDED for the following actions: 1. Obtain all outstanding VA treatment records for the Veteran, to include VA treatment records dated from March 14, 2017 to March 2, 2020 from the Lexington VA Medical Center. 2. Only after all outstanding VA treatment records are associated with the claims file, obtain an addendum opinion from an appropriately qualified clinician. The examiner should opine, to the extent possible, whether the Veteran’s service-connected epilepsy with arachnoid cyst, which is rated totally disabling, is reasonably certain to continue throughout the life of the Veteran. The Board notes diseases or injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of improvement under treatment is remote. In providing the above opinion, the examiner should consider VA treatment records documenting the Veteran’s seizures in March 2018 and February 2019 and the August 2019 VA neurologist’s finding that the Veteran’s seizures are a “permanent condition” and would require him to remain on anti-seizure medications “indefinitely.” A complete rationale with discussion of medical literature for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. 3. Readjudicate the issue of appellant’s basic eligibility to DEA benefits under Chapter 35. If the benefit sought on appeal is not granted to the appellant’s satisfaction, then issue a supplemental statement of the case and provide the appellant an opportunity to respond. If necessary, return the case to the Board for further appellate review. 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.