Citation Nr: 1109759 Decision Date: 03/11/11 Archive Date: 03/24/11 DOCKET NO. 09-15 267A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Denver, Colorado THE ISSUE Entitlement to Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA) benefits for the Veteran's surviving spouse. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran had active service from July 1964 to June 1967 and from July 1968 to August 1985. The Veteran died in May 1992. The appellant is the Veteran's surviving spouse. This matter comes to the Board of Veterans Appeals (Board) from a July 2008 decision of the Health Administration Center in Denver, Colorado, that denied the appellant's entitlement to CHAMPVA benefits. The appellant testified at a January 2011 videoconference hearing. At the hearing, the appellant raised a request that her claim for service connection for the cause of the Veteran's death be reopened. She asserted that his death was related to Agent Orange as it had caused a skin condition which necessitated treatment with steroids which caused severe side effects. She noted that prior to his death he began receiving payments from the Agent Orange fund. She also stated that he had become a diabetic before his death. The Board notes that the Veteran's DD 214 reflects service in Vietnam, and presumptions pertaining to herbicides are applicable. That claim for service connection for the cause of the Veteran's death must be referred to the RO for initial adjudication. The Board notes that if the claim for service connection for the cause of death is reopened and granted, then the claim for CHAMPVA benefits should be revisited at that time. FINDING OF FACT In September 1995, the Veteran's widow was awarded entitlement to dependency and indemnity compensation (DIC) under the provisions of 38 U.S.C.A. § 1151. CONCLUSION OF LAW The criteria for eligibility for CHAMPVA benefits for the Veteran's surviving spouse have not been met. 38 U.S.C.A. §§ 101(16), 1781 (West 2002); 38 C.F.R. §§ 17.270, 17.271 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA) outlines procedural assistance VA must provide to claimants in certain cases. If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied. There are some claims, however, to which VCAA does not apply. Livesay v. Principi, 15 Vet. App. 165, 178 (2001). Specifically, the VCAA has been held not to apply to claims that, as in this case, turn on statutory interpretation. Smith v. Gober, 14 Vet. App. 227, 231-2 (2000). Thus, because the law as mandated by statute, and not the evidence, is dispositive of this appeal, the VCAA is inapplicable. Mason v. Principi, 16 Vet. App. 129 (2002); see also Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought.) As such, no further action is required pursuant to the VCAA. Legal Criteria CHAMPVA is a health benefits program in which VA shares the cost of certain health care services and supplies with eligible beneficiaries. CHAMPVA is managed by VA's Health Administration Center in Denver, Colorado. 38 C.F.R. § 17.270. CHAMPVA benefits are awarded to survivors and dependants of certain Veterans pursuant to 38 U.S.C.A. § 1781. The pertinent provisions are as follows: (a) The Secretary is authorized to provide medical care, in accordance with the provisions of subsection (b) of this section, for - (1) The spouse or child of a Veteran who has been adjudicated by VA as having a permanent and total service-connected disability; or (2) The surviving spouse or child of a Veteran who (A) died as a result of an adjudicated service-connected disability; or (B) who at the time of death had a total disability, permanent in nature, resulting from a service-connected disability; or (3) The surviving spouse or child of a person who died on active military service and in the line of duty and not due to such person's own misconduct who are not otherwise eligible for medical care under chapter 55 of title 10 CHAMPUS/TRICARE. 38 U.S.C.A. § 1781; 38 C.F.R. § 17.271. For the purposes of 38 C.F.R. §§ 17.270 through 17.278, the definition of "service-connected condition/disability" must be that set forth in 38 U.S.C. § 101. Pursuant to 38 U.S.C. § 101(16), the term "service-connected" means, with respect to disability or death, that such disability was incurred or aggravated, or that the death resulted from a disability incurred or aggravated, in line of duty in the active military, naval, or air service. Analysis The appellant contends that her DIC compensation under 38 U.S.C.A. § 1151 should entitle her to receipt of CHAMPVA benefits. A review of the evidence shows that at the time of the Veteran' s death, he was service-connected for bilateral high frequency hearing loss, rated as noncompensable; hemorrhoids, rated as compensable; right inguinal hernia, rated as noncompensable; and costochondritis, rated as noncompensable. The Veteran died in May 1992 from immunosuppression for treatment of bullous skin disease. By rating decisions issued in October 1992 and December 1994, the RO denied service connection for the cause of the Veteran's death. In the December 1994 rating decision, the RO specifically determined that the Veteran's skin disease was not due to Agent Orange exposure in Vietnam. Neither decision was appealed and became final. In September 1995, the RO issued a decision which granted entitlement to Dependency and Indemnity Compensation (DIC) benefits pursuant to 38 U.S.C.A. § 1151 for the Veteran's death due to VA treatment. In the instant case, the appellant was awarded DIC benefits because the Veteran suffered harm as a result of medical treatment at a VA hospital, which gave rise to entitlement to compensation under section 1151 "as if [his] disability .. were service-connected." Because the Veteran's disability was not "service-connected," as defined by 38 U.S.C. § 101(16), the appellant is not entitled to CHAMPVA benefits. Although 38 U.S.C. § 1151 makes certain benefits available for non-service-connected disability "as if" the disability was service-connected, those benefits do not include CHAMPVA. In Alleman v. Principi, 349 F.3d 1368 (Fed. Cir. 2003), the Federal Circuit held that merely because compensation is paid, does not mean that the Veteran's disability must be deemed to have been service-connected. The Court held that in order for a disability to be "service-connected," the disability must have been incurred or aggravated "in line of duty in the active military, naval, or air service." 38 U.S.C. § 101(16). The Court noted that 38 U.S.C. § 1151 does not redefine "service-connected" but provides an exception that grants compensation for some non-service-connected disabilities, treating those disabilities for some purposes "as if" they were service-connected. The Veteran's disability for which DIC compensation was granted clearly was not service-connected, but was instead determined to have arisen as a result of medical treatment at a VA hospital rather than in line of duty. As the DIC was established under 38 U.S.C.A. § 1151, the appellant is not entitled to CHAMPVA under 38 U.S.C.A. § 1781 or 38 C.F.R. § 17.271. The Board acknowledges the appellant's contentions. Nevertheless, the Board must emphasize that it is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet.App. 416, 425 (1994). In a case such as this one, where the law and not the evidence is dispositive, the claim must be denied because of the absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board is bound in its decisions by the statutes enacted by the Congress of the United States and VA regulations issued to implement those laws. See 38 U.S.C.A. § 7104(c). There simply is no provision pursuant to which the Board may grant the appellant the benefits sought. ORDER Eligibility for Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA) benefits for the Veteran's surviving spouse is denied. ____________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs