Citation Nr: 0526971 Decision Date: 10/04/05 Archive Date: 10/17/05 DOCKET NO. 04-10 925 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to a higher rate of dependency and indemnity compensation (DIC) benefits beyond the aid and attendance rate. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, and A.T. ATTORNEY FOR THE BOARD R. Acosta, Counsel INTRODUCTION The veteran served on active duty from October 1942 until February 1944, when he was killed in action in Europe, during World War II. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2002 rating decision of the Department of Veterans Affairs (VA) Los Angeles, California, Regional Office (RO), which granted DIC benefits at the aid and attendance level for a surviving spouse. The appellant, who is the veteran's surviving spouse, appealed the actual amount of the award. The appellant and her helper, A.T., testified at a Board hearing that was chaired by the undersigned Veterans Law Judge sitting at the RO in August 2004. A transcript of that hearing has been made part of the claims folder. FINDING OF FACT The veteran died in February 1944 and the RO, having verified that his enlisted pay grade was E-5, has determined the amounts of monthly payments due to the appellant on account of her being a surviving spouse with no dependents by matching these criteria with the appropriate charts provided for these purposes by the Veterans Benefits Administration for the periods of time in question. CONCLUSION OF LAW The claim of entitlement to a higher rate of DIC benefits beyond the aid and attendance rate lacks legal merit or entitlement under the law. 38 U.S.C.A. § 1311(a)(3) (West 2002 & Supp. 2005); 38 C.F.R. § 3.21 (2004); M21-1, Part I, Appendix B, Changes 42, 45, 48 (2002-2004). REASONS AND BASES FOR THE FINDING AND CONCLUSION I. Factual background The record shows that the appellant, a recipient of DIC benefits for many years, filed a claim for aid and attendance benefits in July 2002, claiming entitlement to those benefits on account of legal blindness and a factual need for aid and attendance, as required by regulation. See 38 C.F.R. § 3.351(b),(c) (2004). The RO granted aid and attendance benefits in the rating decision now under appellate review, dated in August 2002, after concluding that the appellant was indeed legally blind and in need of the daily assistance of another person in performing her routine daily activities. The grant was made effective from August 16, 2002. The RO notified the appellant of the grant of aid and attendance benefits by letter dated in August 2002, explaining therein that the new amount of $1,169.00 per month was based on her being a surviving spouse with no dependents. The letter also explained that the first payment date would be September 1, 2002, the first day of the month following the effective date of the grant of aid and attendance benefits. In January 2003, the RO received the appellant's notice of disagreement (NOD) "with the amount of the award" granted by the RO. Essentially, the appellant argued that the amount awarded was not sufficient to cover her monthly expenses and that it should accordingly be increased. In the statement of the case (SOC) issued in January 2004, the RO explained the computation of the calculated award of $1,169.00 by indicating that, pursuant to 38 U.S.C.A. § 1311(a) and the table contained in Appendix B of the Veterans Benefits Administration Manual M21-1 (the M21-1), the appellant was entitled, as of September 1, 2002, to a basic monthly rate of $935.00, plus an additional $234.00 on account of her being in need of aid and attendance, for a total award of $1,169.00. The SOC further explained that, effective on December 1, 2002, the award would be increased to a basic monthly rate of $948.00, plus $237.00 for aid and attendance, for a total of $1,185.00, and that, effective from December 1, 2003, the award would be again increased, this time to a basic monthly rate of $967.00, plus $241.00 of aid and attendance, for a new total of $1,208.00. The appellant filed her Substantive Appeal in March 2004, attaching to her VA Form 9 a photocopy of her NOD of January 2003. At the August 2004 hearing before the undersigned, the appellant and her helper essentially restated the appellant's contentions that believes that VA should grant a monetary award higher than the one calculated by the RO, as the monetary awards granted by the RO were inadequate to take care of her expenses. At the August 2004 hearing, the appellant also submitted a July 2004 statement from her treating physician, confirming that she remained legally blind due to severe macular degeneration and was dependent on the assistance of another person for all activities of daily living. The appellant waived her right to have this evidence initially considered at the RO level. II. Legal analysis The rates of compensation and DIC for surviving spouses are published in tabular form in Appendix B of the M21-1, Part I, and are to be given the same force and effect as if published in Title 38 of the Code of Federal Regulations. 38 C.F.R. § 3.21 (2004). In the case of DIC benefits paid to a surviving spouse that are predicated on the death of a veteran before January 1, 1993, the monthly rate of such compensation shall be the amount based on the pay grade of such veteran [as set forth in the tables set up for that purpose in Appendix B of the M21-1, Part I]. 38 U.S.C.A. § 1311(a)(3) (West 1999 through West 2002 & Supp. 2005). The basic amount will be increased by the amount provided in Section 1311(c) in effect at the time in question [also found in the M21-1, specifically in a footnote to the tables therein] if the surviving spouse is found to be entitled to aid and attendance. 38 U.S.C.A. § 1311(c). The record shows that VA has determined that the veteran was an E-5 at the time of his death. Because the veteran died in 1944 (i.e., before January 1, 1993), the above mentioned tables of Part I of the M21-1 are to be applied in this case to determine the appropriate amount of compensation payable to the appellant. Effective from December 1, 2001, a survivor spouse's basic monthly rate in the case of an E-5 veteran who died prior to January 1, 1993, was $935.00, plus an additional $234.00 if the surviving spouse was entitled to aid and attendance, for a total of $1,169.00. See M21-1, Part I, Appendix B, Change 42, V(12/2001)-2 (Nov. 4, 2002). Effective from December 1, 2002, a survivor spouse's basic monthly rate in the case of an E-5 veteran who died prior to January 1, 1993, was $948.00, plus an additional $237.00 if the surviving spouse was entitled to aid and attendance, for a total of $1,185.00. See M21-1, Part I, Appendix B, Change 45, V(12/2002)-3 (Sep. 25, 2003). Effective from December 1, 2003, a survivor spouse's basic monthly rate in the case of an E-5 veteran who died prior to January 1, 1993, was $967.00, plus an additional $241.00 if the surviving spouse was entitled to aid and attendance, for a total of $1,208.00. See M21-1, Part I, Appendix B, Change 48, V(12/2003)-3 (Oct. 4, 2004). As shown above, the RO correctly calculated the amounts of benefits due to the appellant when it granted aid and attendance benefits in August 2002 and when it thereafter re- calculated the amounts payable to her through January 2004 in the January 2004 SOC. The Board sympathizes with the appellant's request to be granted higher rates than those above assigned on account of her being found to be in need of aid and attendance, the law is clearly dispositive of her claim, precluding the Board (or the RO, for that matter) from granting rates higher than those authorized by law. "Payment of government benefits must be authorized by statute." McTighe v. Brown, 7 Vet. App. 29, 30 (1994) (citing, inter alia, OPM v. Richmond, 496 U.S. 414, 424 (1990) (holding that payments of money from Federal Treasury are limited to those authorized by statute)). Thus, the claim for a higher rate of DIC benefits beyond the aid and attendance rate lacks legal merit or entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). As such, it has failed and must necessarily be denied. III. Final consideration regarding VA's re-defined duties to assist and notify The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2004). VA's General Counsel has held that under 38 U.S.C.A. § 5103(a), VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. The General Counsel has held with regard to 38 U.S.C.A. § 5103A, that VA is not required to assist a claimant in developing evidence to substantiate a claim where there is no reasonable possibility that such aid could substantiate the claim because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. VAOPGCPREC 5-2004 (2004), 69 Fed. Reg. 59989 (2004). Similarly the United States Court of Appeals for Veterans Claims (Court) has held that the VCAA was not applicable where the outcome was controlled by the law, and the facts are not in dispute. Livesay v. Principi, 15 Vet. App. 165, 178 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000). In the instant case the relevant facts are not in dispute, and the law is controlling. Accordingly the VCAA is not applicable. ORDER Entitlement to a higher rate of DIC benefits beyond the aid and attendance rate is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs