Citation Nr: 18149704 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 15-12 854 DATE: November 13, 2018 ORDER An automobile and adaptive equipment or adaptive equipment is denied. FINDING OF FACT The claim pending at the time of the Veteran’s death, for an automobile and adaptive equipment or adaptive equipment, is not a claim for “periodic monetary benefits.” CONCLUSION OF LAW As automobile and/or specially adaptive equipment are not accrued benefits, the appellant is not entitled to these benefits as a substituted claimant. 38 U.S.C. §§ 3902, 5121(a), 5121A (2012); 38 C.F.R. §§ 3.808, 3.1000, 3.1010 (2017); Gillis v. West, 11 Vet. App. 441 (1998). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from July 1967 to December 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. At the time of his death in May 2016, the Veteran had a pending appeal for automobile and/or specially adaptive equipment. The Veteran’s surviving spouse, who is the appellant, has been substituted as the claimant for the purposes of the claim pending at the date of the Veteran’s death. In April 2018, the appellant presented sworn testimony at a videoconference hearing before the undersigned. 1. Automobile and Adaptive Equipment As noted above, the appellant, who is the Veteran’s surviving spouse, has been substituted as the claimant in this appeal, which was pending at the time of the Veteran’s death. In that regard, if a claimant dies while a claim for any benefit under a law administered by the Secretary, or an appeal of a decision with respect to such a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant may, not later than one year after the date of the death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion. The appellant made such a timely request approximately one month after the Veteran’s death. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. 38 U.S.C. § 5121A indicates that valid substituted appellants are those eligible to receive accrued benefits. The statute outlining the criteria for entitlement to accrued benefits, 38 U.S.C. § 5121, provides, in pertinent part, that accrued benefits consist of periodic monetary benefits (other than insurance and servicemen’s indemnity) under the laws administered by the Secretary to which an individual was entitled at death. The appellant seeks automobile and adaptive equipment due to the Veteran’s service-connected eye disorder, which impaired his ability to operate a standard automobile. Unfortunately, a claim seeking either an automobile and adaptive equipment, or adaptive equipment only, is not a claim for “periodic monetary benefits,” as contemplated by the statute governing the payment of accrued benefits. Rather, the statute and regulations governing this benefit provide for a one-time payment to the seller of the vehicle and/or the provision of the adaptive equipment by VA. See 38 U.S.C. § 3902; 38 C.F.R. § 3.808; Gillis v. West, 11 Vet. App. 441 (1998) (holding that automobile purchase assistance is not an accrued benefit as a matter of law even when entitlement to the benefit was established prior to a veteran’s death). Accordingly, the benefit sought by the appellant cannot be granted to her as a substituted claimant as a matter of law. Gillis, 11 Vet. App. at 442-43. Based on the foregoing, the Board concludes that an automobile and adaptive equipment with the appellant substituted as the claimant, is not warranted. The Board is sympathetic to the appellant but is bound by the applicable laws and regulations. 38 U.S.C. § 7104(c) (2012); 38 C.F.R. §§ 19.5, 20.101(a) (2017). Those laws and regulations do not permit the benefit sought by the appellant to be paid to a substituted claimant. The Board further notes that the Veteran’s claim does not raise the issue of entitlement to separate or higher ratings for special monthly compensation (SMC). See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); see also Bradley v. Peake, 22 Vet. App. 280 (2008) (finding that SMC “benefits are to be accorded when a Veteran becomes eligible without need for a separate claim”); Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2011) (requiring the Board to consider awarding SMC at the housebound rate if a veteran meets the requisite schedular or extraschedular criteria). In this regard, the evidence affirmatively shows that the Veteran’s eye disorder did not result in anatomical loss or loss of use of either eye, having only light perception, which may have given rise to separate or higher levels of SMC under 38 U.S.C. § 1114. In this regard, the September 2014 VA eye examination shows that the Veteran had 20/40 corrected distance in both eyes and did not suffer anatomical loss, with light perception only, extremely poor vision, or blindness of either eye. Additionally, while the examiner noted constant diplopia at central 20 degrees, such was correctable with spectacles, and thus, does not warrant a compensable rating. See 38 C.F.R. § 4.79, Diagnostic Code 6090, Note (2017). Finally, while the examiner noted that the Veteran’s loss of visual field rendered him legally blind, such does not amount to anatomical loss, with light perception only, extremely poor vision, or blindness of either eye necessary to warrant a separate or higher level of SMC. See 38 U.S.C. § 1114; 38 C.F.R. § 3.350. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joshua Castillo, Counsel