Citation Nr: 1511260 Decision Date: 03/17/15 Archive Date: 03/27/15 DOCKET NO. 12-35 269 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a specially adapted housing grant, for accrued benefits purposes. ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active service from November 1976 to January 1979. He died in December 2009. The Appellant is his brother. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 administrative decision issued by the Department of Veterans Affairs (VA) Regional Loan Center located at the Regional Office (RO) in Cleveland, Ohio. Because the Appellant currently lives within the jurisdiction of the RO in Indianapolis, Indiana, that facility has jurisdiction in this appeal. The Board notes that, in his November 2012 Substantive Appeal (VA Form 9), the Appellant requested a hearing before a Veterans Law Judge. The Appellant was scheduled to attend such a hearing in April 2013. In March 2013, the Appellant withdrew his Board hearing request. 38 C.F.R. § 20.704(e) (2014). This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this Appellant's case should take into consideration the existence of these electronic records. FINDINGS OF FACT 1. During his lifetime, the Veteran was granted service connection for loss of use of the upper and lower extremities; these disabilities were evaluated as 100 percent disabling and the Veteran was entitled to special monthly compensation as a result. 2. In a March 2009 rating decision, the Veteran's eligibility for special home adaptation, specially adapted housing, and automobile and adaptive equipment was established. 3. The Veteran submitted an application for automobile or other conveyance and adaptive equipment in July 2009. 4. The Veteran died in December 2009. 5. At the time of the Veteran's death, assistance in acquiring specially adapted housing had not been granted. 6. The payment of a grant of acquiring specially adapted housing is not a periodic monetary payment subject to an accrued benefits claim. CONCLUSION OF LAW The Appellant's claim of entitlement to specially adapted housing, for the purpose of paying accrued benefits must be denied as a matter of law. 38 U.S.C.A. § 5121 (West 2014); 38 C.F.R. § 3.1000 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. As will be explained below in greater detail, the Appellant's claim lacks legal merit. As the law, and not the facts, is dispositive of this claim, the duties to notify and assist imposed by the VCAA are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Manning v. Principi, 16 Vet. App. 534, 542-543 (2002) (finding the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts, are dispositive in a matter). During the Veteran's lifetime, he was awarded service connection for the loss of use of the upper and lower extremities, evaluated as 100 percent disabling. He also was awarded special monthly compensation based on the loss of use of all four extremities. In March 2009, his eligibility for special home adaptation and specially adapted housing was established. VA administrative notes reveal that, in May 2009, the Veteran's request for a specially adapted housing grant was denied as the Appellant did not have property titled in accordance with VA regulations. Specifically, the Appellant owned a mobile home and leased the lot on which it was located. (Parenthetically, the Board notes that the record contains a state Certificate of Title for a Vehicle showing that this mobile home was registered as a vehicle with the state Bureau of Motor Vehicles and a private lease showing that the Appellant leased the lot on which the mobile home was located. The Appellant disputes that he does not have appropriate title under VA regulations.) The Veteran died in December 2009. In September 2010, the Appellant sought reimbursement for expenses he incurred to increase the Veteran's accessibility in the Appellant's home prior to the Veteran's death. The Board recognizes that the Appellant seeks reimbursement for expenses that he incurred while adapting his home to care for the Veteran prior to his death. The laws and regulations governing accrued benefits claims and specially adapted housing are prescribed by Congress and implemented via regulations by VA. Neither the AOJ (Agency of Original Jurisdiction, in this case, a VA Regional Loan Center located at the RO in Cleveland, Ohio) nor the Board is free to disregard these laws and regulations. While the Board is sympathetic to the Appellant's claim, it is simply without authority to grant the claim on an equitable basis. Instead, the Board is constrained to follow the specific provisions of law. See 38 U.S.C.A. § 7104(c); 38 C.F.R. § 20.101(a). In other words, VA can only pay benefits that are authorized by law. Harvey v. Brown, 6 Vet. App. 416, 424 (1994) (remedy for breach of alleged obligation cannot involve payment of benefits where statutory requirements for such benefits are not met); see also Shields v. Brown, 8 Vet. App. 346, 351 (1995); McTighe v. Brown, 7 Vet. App. 29, 30 (1994). The Board finds that there is no basis in law or fact to consider the Appellant's claim of entitlement to a specially adapted housing grant, for accrued benefits purposes, on the merits. A claim for specially adapted housing or for a special home adaptation grant is not a "periodic monetary benefit" for purposes of accrued benefits. 38 U.S.C.A. § 2101. The Court has held that, as a matter of law, a one-time payment for assistance for specially adapted housing does not qualify as a "periodic monetary benefit" for purposes of 38 U.S.C.A. § 5121 and is not payable as an "accrued benefit." See Pappalardo v. Brown, 6 Vet. App. 63, 65 (1993). There are no periodic monetary benefits for specially adaptive housing or special home adaptation grant to which the Veteran was entitled at his death that were due and unpaid at the time of his death. As such, the appeal is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to a specially adapted housing grant, for accrued benefits purposes, is denied as a matter of law. ____________________________________________ MICHAEL T. OSBORNE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs