Citation Nr: 23027149 Decision Date: 05/07/23 Archive Date: 05/07/23 DOCKET NO. 18-47 687 DATE: May 7, 2023 ORDER Entitlement to basic eligibility for Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code (Chapter 35) is denied. FINDINGS OF FACT 1. At the time of the service member's death in August 2011, he did not have a disability evaluated as total and permanent in nature resulting from a service-connected disability, and he did not die from a service-connected disability. 2. Service connection for the cause of the service-member's death has not been established. CONCLUSION OF LAW The criteria for entitlement to basic eligibility for DEA benefits under Chapter 35 have not been met. 38 U.S.C. §§ 3500, 3501, 3510; 38 C.F.R. §§ 3.312, 21.3020, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSION The service member had active duty from October 1991 to April 1992 and from May 2000 to August 2011. He died in August 2011. The appellant has filed this claim as his surviving spouse. The appellant initially elected to have a Board hearing by video conference in the September 2018 VA Form 9, Appeal to the Board of Veterans' Appeals. The appellant was scheduled to present testimony via video conference during a hearing before a Veterans Law Judge on several occasions, including in October 2021, June 2022, and January 2023. She requested to reschedule these hearings in November 2022 and January 2023 written statements and showed good cause for the need to reschedule the hearings. Most recently, she was scheduled to present testimony at a hearing that was scheduled in April 2023. She was notified of the time and place of the hearing by a January 2023 letter, and VA attempted to contact her by telephone on four occasions in March 2023 and April 2023 regarding the April 2023 scheduled Board hearing. However, the appellant failed to appear for the hearing, and she has not requested that the hearing be rescheduled or established good cause for her failure to appear. Therefore, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704. The appellant is seeking DEA benefits as a surviving spouse of a service member who died while in service. Survivors' and Dependents' Educational Assistance under Chapter 35 is a program of education or special restorative training that may be authorized for an eligible person, such as a surviving spouse, if the applicable criteria are met. See 38 U.S.C. §§ 3500, 3501; 38 C.F.R. §§ 21.3020, 21.3021. Basic eligibility for DEA benefits exists if the veteran was discharged from service under conditions other than dishonorable, or died in service, and either (1) has a permanent total service-connected disability, or (2) a permanent total service-connected disability was in existence at the date of the veteran's death, or (3) died as a result of a service-connected disability, or, if a service member (4) is on active duty as a member of the Armed Forces and, for a period of more than 90 days, has been listed by VA concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in the line of duty by a foreign government or power. 38 C.F.R. § 3.807. To be an eligible person for DEA benefits, the individual must be a surviving spouse of a veteran who died of a service-connected disability; or, a surviving spouse of a veteran who died while having a disability evaluated as total and permanent in nature resulting from a service-connected disability, arising out of active military, naval, or air service after the beginning of the Spanish-American War. 38 C.F.R. § 21.3021(a)(2). The facts are not in dispute. The evidence shows that the appellant is the surviving spouse of the service member, who died in August 2011 while on active duty. Service personnel records, including a December 2011 Report of Casualty (DD Form 1300), show that the service member's death was deemed an accident and that he died during a period of active-duty service but while he was off duty. The August 2011 death certificate shows that the service member was involved in a motor vehicle accident. A description of the injury that caused his death shows that he was the operator of a motorcycle, who left a paved road at a high rate of speed and was thrown from the motorcycle while being pursued by the police. In August 2017, the appellant filed an Application for Survivor's and Dependents' Educational Assistance (VA Form 22-5490) seeking DEA benefits to pursue a course of study. After the Agency of Original Jurisdiction (AOJ) denied her claim, the appellant submitted an October 2017 Notice of Disagreement (NOD), in which she contended that she was entitled to DEA benefits due to mitigating circumstances. She noted the service member's long period of active duty of over 10 years, as well as his numerous deployments to Afghanistan and Iraq, including over three-and-a-half years of service in combat zones as a combat medic. She asserted that the service member was back from his last deployment for only seven months and 11 days prior to his death, and she indicated that he might have experienced signs and symptoms of posttraumatic stress disorder (PTSD) or severe anxiety that may have impaired his decision-making abilities at the time of his death. She noted that the service member was taking an unknown medication four times per day prior to his death. The appellant made similar contentions in the September 2018 VA Form 9, in which she requested reconsideration of the bar to benefits because the service member's actions post-deployment indicated a possible mental impairment, including "living a careless life[]style consisting of 'unwise actions.'" She stated that she believed that her husband suffered from PTSD and other mental impairment due to combat stresses of serving as a combat veteran. Given this evidence, the Board finds that entitlement to basic eligibility for DEA benefits under Chapter 35 must be denied, as the service member did not have a disability evaluated as total and permanent in nature resulting from a service-connected disability at the time of his death in August 2011, and he did not die from a service-connected disability. The Board notes that a review of the service treatment and personnel records and VA records shows that the Veteran was not service connected for any disability and that he did not have any pending claims with VA at the time of his death. The Board is sympathetic to the appellant's contentions that the service member's actions that led to his death in August 2011 may have been caused by symptoms from a psychiatric disorder; however, the Board notes that service connection for the cause of the service-member's death, including from any acquired psychiatric disorder, has not been established. In fact, a November 2012 decision by the AOJ shows that entitlement to Dependency and Indemnity Compensation (DIC) was denied, as the AOJ determined the service member's death was not incurred in the line of duty and was due to willful misconduct. The Board further notes that the issue before it is not whether entitlement to service connection for DIC benefits based on the cause of the Veteran's death should have been or should be granted, but rather whether the appellant is entitlement to DEA benefits. Although the Board is sympathetic to the appellant's contentions, it must find that entitlement to DEA benefits is not warranted as the appellant is not an eligible person for receipt of such benefits under Chapter 35. The Board is bound by applicable law and regulations when determining a claim for VA benefits. Here, the regulatory criteria governing eligibility for 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 the appellant DEA benefits under Chapter 35 as she does not meet the basic eligibility requirements. For the appellant to qualify, the service member must have died of a service-connected disability, or he must have had a disability evaluated as total and permanent in nature resulting from a service-connected disability at the time of his death. See 38 C.F.R. § 21.3021(a)(2). However, as noted above, at the time of his death in August 2011, he was not service connected for any disability, including any disability evaluated as total and permanent in nature, and he did not die from a service-connected disability. In sum, the Board finds that the appellant is not eligible to receive DEA benefits under Chapter 35 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.