Citation Nr: 1306398 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 12-23 992 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to duplicate or a higher rated of dependency, indemnity, and compensation (DIC) payments based on aid and attendance (A&A). REPRESENTATION Appellant represented by: [redacted] ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran served on active duty from November 1942 to October 1945. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a January 2011 Administrative Decision of a Department of Veterans Affairs (VA) Regional Office and Pension Center in St. Paul, Minnesota (RO) that carried out a November 2010 decision proposing to discontinue duplicate payment of dependency, indemnity and compensation (DIC) benefits. Duplicate payments had been paid since January 1, 2010. The Albuquerque, New Mexico RO retains jurisdiction over the appellant's claims. The appellant's son has been recognized as her representative for one time under the provisions of 38 C.F.R. § 14.630 (2012). This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a) (2) (West 2002). FINDINGS OF FACT 1. The appellant has been in receipt of DIC benefits since at least December 1999; and received an additional separate DIC payment at the aid and attendance (A&A) rate from January 1, 2010 to January 1, 2011. 2. There is no regulatory or statutory authority for VA to make duplicate or separate DIC payments even were benefits based on A&A are warranted. 3. There is no regulatory or statutory authority for payment of a higher rate of DIC based on A&A. CONCLUSION OF LAW The discontinuance of the appellant's duplicative compensation for A&A benefits effective January 1, 2010, was proper. 38 U.S.C.A. §§ 1114, 5112, 5302, 5304 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.500, 21.3023 (2012). There is no legal entitlement to a higher rate of DIC based on A&A. 38 U.S.C.A. §§ 1311(c) (West Supp. 2012); 38 C.F.R. §§ 3.351, 3.352 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In the matter being decided herein, i.e., whether termination of additional compensation benefits for A&A effective December 31, 2009, was proper, the Board has determined that there is no legal entitlement to the additional claimed benefit as a matter of law. The notice provisions and duty to assist provisions are not applicable to a claim where the 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. VAOPGCPREC 5-04; 69 Fed. Reg. 59989 (2004). Thus, as there is no dispute as to the underlying facts of this case, and as the Board has denied the claim as a matter of law, the notice provisions and duty to assist provisions are inapplicable. See e.g., Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc); Wensch v. Principi, 15 Vet. App. 362 (2001). Background The Veteran's death certificate shows that he died in April 1968; as the result of a myocardial infarction. The appellant has been in receipt of DIC benefits since at least December 1999. In December 2009 she submitted what was styled an "'Informal Application' for widows pension with additional aid and attendance and/or housebound benefits." She subsequently clarified that she was not applying for pension benefits (which would have been less than her current DIC benefit). In February 2010, she submitted a formal application for a higher rate of DIC, based on the need for regular aid and attendance. See 38 U.S.C.A. § 1311(c). In March 2010, her claim for DIC at the A&A rate was granted, effective in December 2009, with her first payment in January 2010. See 38 U.S.C.A. § 5111 (West 2002 & Supp. 2012). In a November 2010 Administrative Decision, the RO notified the appellant that it had discovered that she had been erroneously receiving duplicate DIC payments since January 1, 2010. She had continued to receive her original DIC benefit and an additional DIC benefit at the A&A rate. As a result the appellant had been overpaid $11,940 for DIC benefits. The fault was determined to have been with VA and no overpayment was created. The RO was proposing to discontinue the duplicate payments. In a January 2011 memorandum, the RO noted that no new evidence had been received within the 60 day period since the prior November 2010 Administrative Decision and therefore the duplicate payment was discontinued, and, the appellant's A&A payments were corrected and continued. In a February 2011 letter, the appellant's son noted that his mother had been in assisted living and had not received the November 2010 proposed reduction in benefits letter. He argued that VA had told him that his mother was entitled to $2,674 a month in benefits and he relied on this amount to move his mother to an assisted living facility. He acknowledged that he later received the letter from VA notifying him that appellant had been erroneously receiving double payments. However, he argued that reducing the amount to $1,480 a month would leave the appellant, "nothing to live on." There is a presumption of regularity under which it is presumed that government officials "have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). Therefore, it must be presumed that VA discharged its official duties by properly handling claims submitted by the veteran. The presumption of regularity is not absolute; it may be rebutted by the submission of "clear evidence to the contrary." Statements made by an appellant are not the type of clear evidence to the contrary which would be sufficient to rebut the presumption of regularity. Jones v. West, 12 Vet. App. 98 (1999), Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994); Ashley v. Brown, 2 Vet. App. 62, 64 (1992). As noted above, the appellant was notified by letter dated in November 2010 of the RO's intent to discontinue the erroneous duplicate DIC payments thereby correcting her A&A payments effective retroactively to January 1, 2010. The notice was sent to the appellant's address of record and there is no indication that it was returned as undeliverable. The letter was sent to the same address as a February 2011 notice to which the appellant through her son did respond. There is not clear and convincing evidence that VA failed to provide notice of the proposed termination of the duplicate benefits. The provisions of 38 C.F.R. § 3.500(b)(2) (2012), provide that the discontinuance of an erroneous payment will be the date of the last payment when the error is solely administrative. The RO recognized in its November 2010 decision that there had been an erroneous payment, but actually reduced the payment, effective January 1, 2011. Hence, the appellant was actually paid more than was required by a strict reading of 38 C.F.R. § 3.500(b)(2). The notice requirements of 38 C.F.R. § 3.105 (2012) were not applicable because the award was suspended and, as further discussed below, no additional payment was warranted. Id. Accordingly, the Board finds that the reduction of the Veteran's A&A benefits was procedurally proper. The law provides that the rate of DIC benefits will be increased if the appellant is in need of regular A&A. This amount was $271 during the period from June 30, 2009 to October 12, 2010 and has been $286 since October 13, 2010. 38 U.S.C.A. § 1311(c) (West Supp. 2012). In the instant case, following the award of A&A benefits the RO mistakenly continued one payment at the DIC rate and started another payment at the DIC rate plus the A&A benefit. Although the appellant has at times contended that the payment of the double benefit was proper, there is no regulatory or statutory authority for such a double payment. The statute explicitly provides that the additional A&A benefit is added to the DIC rate and makes no provision for entirely separate payments of DIC and DIC plus A&A. She has also contended that the amount of her benefit is inadequate to meet her current level of expenses. VA is without authority to pay a benefit unless authorized by Congress. The Supreme Court has held that the Appropriations Clause of the Constitution, U.S. CONST. art. I, § 9, cl. 7, precludes the government from making an award of public funds to a statutorily ineligible claimant. See OPM v. Richmond, 496 U.S. 414, 424 (1990); see also Rosenberg v. Mansfield, 22 Vet. App. 1, 7 (2007). The appellant has also argued that she is entitled to a higher rate of A&A under the provisions of 38 C.F.R. § 3.352 (2012). That regulation provides for a higher rate of aid and attendance for veterans in some circumstances, but does not provide that benefit to persons other than veterans. 38 C.F.R. § 3.352(b) (2012). The provisions of 38 C.F.R. § 3.352(a) (2012) merely provide criteria for granting regular aid and attendance; these provisions could not serve as the basis for a higher rate of payment because she is already in receipt of benefits based on regular aid and attendance. Similarly the appellant has made reference to the provisions of 38 U.S.C.A. § 1311(c); but this is the statute under which her current rated of aid and attendance is paid. Ultimately there is no legal basis for payment of duplicate or higher rates of DIC based on the appellant's need for aid and attendance. ORDER Entitlement to duplicate or a higher rated of dependency, indemnity, and compensation (DIC) payments based on aid and attendance (A&A). ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs