BVA9507661 DOCKET NO. 91-49 569 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Whether the requirement that the veteran have a total disability permanent in nature resulting from a service-connected disability has been met for purposes of establishing the appellant's basic eligibility for Department of Veterans Affairs (VA) Dependents' Educational Assistance under Chapter 35, Title 38, United States Code. (The issues of entitlement to service connection for acute alcoholism, entitlement to service connection for a bipolar disorder, entitlement to an effective date prior to June 26, 1990, for a grant of service connection for Post-Traumatic Stress Disorder (PTSD), and permanency of the 100 percent disability evaluation in effect for the veteran's PTSD are the subject of a separate decision.) REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Alan S. Peevy, Associate Counsel INTRODUCTION The veteran had active military service from March 1966 to March 1969. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 1993 determination by the Phoenix, Arizona, Regional Office (RO) denying a claim by the appellant (the veteran's daughter) for entitlement to VA Dependents' Educational Assistance under Chapter 35, Title 38, United States Code, based on the veteran's service. The appellant's notice of disagreement was received in February 1994, and a statement of the case was issued in June 1994. A substantive appeal was marked as received in October 1994. The appellant is represented by the Disabled American Veterans. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the requirement that the veteran have a total disability permanent in nature resulting from a service-connected disability has been met for purposes of establishing the appellant's basic eligibility for VA Dependents' Educational Assistance under Chapter 35, Title 38, United States Code. FINDING OF FACT By separate Board decision of even date herewith, the Board granted an appeal by the veteran on the issue of the permanency of his 100 percent disability evaluation for service-connected PTSD. CONCLUSION OF LAW The requirement that the veteran have a total disability permanent in nature resulting from a service-connected disability has been met for purposes of establishing the appellant's eligibility for VA Dependents' Educational Assistance under Chapter 35, Title 38, United States Code. 38 U.S.C.A. § 3501(a)(1)(A)(ii) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Dependents' Educational Assistance may be awarded to the dependents of certain veterans under the provisions of Chapter 35, Title 38, United States Code if certain statutory requirements are met. In the present case, the RO denied the appellant's application for Chapter 35 benefits based on a finding that although the veteran had a service-connected disability rated 100 percent disabling, this total disability was not permanent in nature so as to satisfy the basic eligibility requirement set forth in 38 U.S.C.A. § 3501(a)(1)(A)(ii) (West 1991). The veteran has initiated appeals on several separate issues as well as an appeal involving the same underlying question presented in the present appeal; that is, whether his total disability due to service-connected PTSD is permanent in nature. As noted on the cover page of this decision, the Board has issued a separate opinion addressing the veteran's appeals. In that opinion of even date herewith, the Board found the veteran's total disability due to service-connected disability to be permanent in nature. Accordingly, the basic eligibility requirement set forth in 38 U.S.C.A. § 3501(a)(1)(A)(ii) (West 1991) which was the cited reason for the RO's denial of the appellant's Chapter 35 claim has now been met. ORDER The requirement that the veteran have a total disability permanent in nature resulting from a service-connected disability has been met for purposes of establishing the appellant's eligibility for VA Dependents' Educational Assistance under Chapter 35, Title 38, United States Code. The appeal is granted to this extent. E. M. KRENZER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. (CONTINUED ON NEXT PAGE) NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.