Citation Nr: 1802544	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  11-06 863	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania

THE ISSUES

1.  Whether the appellant is eligible to substitute for the Veteran in the claims for entitlement to specially adapted housing or special home adaptation grant.  

2.  Entitlement to specially adapted housing. 

3.  Entitlement to a special home adaptation grant.




ATTORNEY FOR THE BOARD

Dan Brook, Counsel


INTRODUCTION

The Veteran served on active duty from March 1963 to March 1966.   He died in September 2016.  The appellant is his surviving spouse.  

This matter comes before the Board of Veterans' Appeals (Board) from a an October 2009 rating decision of the Pittsburgh, Pennsylvania Regional Office (RO) of the Department of Veterans' Affairs (VA), which denied entitlement to specially adapted housing and special home adaptation grant.  In November 2014, the case was remanded for further development.   

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (2012).


FINDING OF FACT

As the claims for entitlement to specially adapted housing and special home adaptation grant are not claims for periodic monthly benefits, they do not survive the Veteran's death and the appellant is ineligible to substitute for him.  


CONCLUSION OF LAW

Because of the Veteran's death, the Board has no jurisdiction to adjudicate the merits of the claims for specially adapted housing and special home adaptation grant; they must be dismissed as moot.  38 U.S.C. §§ 5121A, 7104(a) (2012); 38 C.F.R. §§ 3.1010, 20.1302 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to notify and assist

The provisions of the Veterans Claims Assistance Act of 2000 (VCAA) are not applicable to the instant appeal because turns on a matter of law and not on the underlying facts or development of the facts.  See Manning v. Principi, 16 Vet. App. 534, 542 (2002).  The VCAA can have no effect on appeals that are decided on an interpretation of the law as opposed to a determination based on fact.  See Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).  The Board therefore finds that any deficiency in VA's VCAA notice or development action is harmless error.

II.  Analysis

The Veteran passed away in September 2016, while this appeal was still pending.  In October 2016, the appellant submitted a claim for VA death benefits, including dependency and indemnity compensation.  In a November 2016 rating decision, the RO granted entitlement to dependency and indemnity compensation.  Also, in a subsequent November 2, 2017 letter, the RO indicated that as the surviving spouse who had already submitted a claim for VA death benefits, the appellant could be substituted for the Veteran for the pending claims for entitlement to specially adapted housing and special home adaptation grant.  In a November 2017 memorandum, the RO confirmed that it had in fact recognized the appellant as substitute in relation to the ongoing claims for specially adapted housing and special home adaptation grant.  

The express purpose of specially adapted housing and special home adaptation grants is to assist any veteran who meets certain criteria due to service-connected disability in acquiring a suitable housing unit with special fixtures or movable facilities made necessary by the nature of the veteran's disability.  See 38 U.S.C. § 2101; 38 C.F.R. §§ 3.809, 3.809a.  Similarly, the purpose of providing a Veteran with financial assistance in acquiring an automobile or other conveyance and adaptive equipment, or adaptive equipment only, is to facilitate driving, other types of movement or other activities for certain eligible veterans.  38 U.S.C. § 3902 (a-b). 

As noted, the Veteran unfortunately died during the pendency of this appeal. Although the RO determined that the appellant, as his lawful surviving spouse, could substitute as the claimant for purposes of processing the instant appeal, the specific provisions pertaining to substitution provide that only a person eligible for accrued benefits under § 3.1000 (a) may request to substitute for a deceased claimant.  38 C.F.R. § 3.1010 (a).  Additionally, proper candidates may only be substituted for the Veteran in appeals for "periodic monetary benefits."  Id.  Here, as a matter of law, grants of assistance for specially adapted housing or a special home adaptation grant are not a "periodic monetary benefit" as that term is defined under relevant statute and regulation.  38 U.S.C. § 512; 38 C.F.R. § 3.1000.  Rather, these benefits are one time payments afforded to Veterans.  See e.g https://www.benefits.va.gov/homeloans/adaptedhousing.asp.  Therefore, the claims for specially adapted housing and special home adaptation grant could not be granted on an accrued benefits basis and the appellant is ineligible to substitute for the Veteran with respect to them.  38 C.F.R. § 3.1010 (a).  Thus, the adjudication of these claims on the merits has become moot by virtue of the Veteran's death.  Accordingly, they must be dismissed for lack of jurisdiction.  See 38 U.S.C.A. 
§§ 5121A, 7104(a). 







ORDER

The appellant is not eligible to substitute for the Veteran in the claims for entitlement to specially adapted housing or special home adaptation grant.  

The appeal for entitlement to specially adapted housing is dismissed. 

The appeal for entitlement to a special home adaptation grant is dismissed.  



____________________________________________
KELLI A. KORDICH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs