Citation Nr: 21065231 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 16-41 808 DATE: October 25, 2021 ORDER Entitlement to eligibility for the purchase of automobile and adaptive equipment is dismissed. Entitlement to specially adapted housing is dismissed. Entitlement to special home adaptation grant is dismissed. REMANDED Entitlement to service connection for a right foot disability, to include status post right foot amputation, is remanded. FINDINGS OF FACT 1. The appellant's claimed benefit of financial assistance for automobile or other conveyance and adaptive equipment, or for adaptive equipment only, is not a periodic monthly benefit, but rather a one-time lump sum payment. 2. The appellant's claimed benefit of eligibility for specially adapted housing is not a periodic monthly benefit, but rather a one-time lump sum payment. 3. The appellant's claimed benefit of eligibility for a special home adaptation grant is not a periodic monthly benefit, but rather a one-time lump sum payment. CONCLUSIONS OF LAW 1. The appellant is ineligible to receive financial assistance for automobile or other conveyance and adaptive equipment, or for adaptive equipment only, as a substitute claimant. 38 U.S.C. §§ 5121 (a), 5121A (2018); 38 C.F.R. §§ 3.1000 (a), 3.1010(a) (2021). 2. The appellant is ineligible to receive financial assistance for specially adapted housing as a substitute claimant. 38 U.S.C. §§ 5121 (a), 5121A (2018); 38 C.F.R. §§ 3.1000 (a), 3.1010(a) (2021). 3. The appellant is ineligible to receive special home adaption grant as a substitute claimant. 38 U.S.C. §§ 5121 (a), 5121A (2018); 38 C.F.R. §§ 3.1000 (a), 3.1010(a)(2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1973 to May 1974. He passed away in March 2017. The appellant is the surviving spouse and has been properly substituted in the current matter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision by the Department of Veterans Affairs (VA). In September 2019, the appellant testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). By way of history, in an October 2019 Board decision, the Board remanded the claim for service connection for the right foot disability, a higher rating for hepatitis C, and for eligibility for financial assistance for automobile, specially adopted housing, and special home adaptation grant. However, as to the claim for service connection for the right foot disability, although the Board sincerely regrets the additional delay, a remand is necessary to afford due process of law and to ensure that there is a complete record upon which to decide the appeal. See 38 U.S.C. § 5103a; 38 C.F.R. § 3.159. See remand section below. The Board notes that the claim for higher evaluation for hepatitis C was remanded as a statement of the case (SOC) had not been issued following the 2013 notice of disagreement for the issue as required under Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Subsequent to the 2019 Board decision, the RO issued a June 2020 SOC; however, the appellant did not file a substantive appeal within 60 days of the SOC and it became final. The Board is cognizant of the September 2021 brief from the appellant's representative that included the issue of a higher rating for hepatitis C, but observes that there was no correspondence received from the appellant or her representative between the June 2020 SOC and the September 2021 brief. As such, this issue is no longer on appeal. Entitlement to financial assistance for automobile or other conveyance and adaptive equipment or for adaptive equipment only, for specially adopted housing, and special home adaptation grant Here, the appellant is the proper substitute to the claims following the Veteran's passing away. A person eligible for substitution includes "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title." See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(a). "Periodic monetary benefits" are benefits that the claimant is entitled to receive and are paid monthly. Wilkes v. Principi, 16 Vet. App. 237, 241-42 (2002). The appellant's claimed benefits of financial assistance for automobile or other conveyance and adaptive equipment, or for adaptive equipment only, and for specially adopted housing, and special home adaptation grant are not periodic monthly benefits, but rather one-time lump sum payments. Accordingly, such benefits cannot be considered accrued benefits, as such are defined as "periodic monetary benefits... authorized under law administered by [VA], to which a payee was entitled at his or her death under existing ratings for decisions or those based on evidence in the file at the date of death, and due and unpaid..." see 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a); see also Pappalardo v. Brown, 6 Vet. App. 63, 65 (1993) (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. § 5121, because such benefits may be paid only once, and therefore is not payable as an accrued benefit); Gillis v. West, 11 Vet. App. 441 (1998) (holding that automobile purchase assistance is not an accrued benefit as a matter of law because, although such benefits may be paid more than once, payment is not made periodically, meaning at regular intervals). Analyzing 38 U.S.C. § 5121(a), the key word is periodic (emphasis added). Unless a payment is one that a veteran would have received in regular intervals during his or her lifetime, a substituted claimant may not recover that benefit. While the Board is sympathetic to the claims, it is bound by the statutory scheme created by Congress and is not permitted to award payments other than as authorized by Congress. Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992); citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990) ("[N]o equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress."). Because of the limitation under the law on payment, there is no relief that can be afforded by the Board on these claims, and any question of law or fact regarding whether the benefit sought had been appropriately denied during the Veteran's life is now moot. See 38 U.S.C. § 7104 (providing that the Board decides actual "questions in a matter"); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As such, the appellant, as a matter of law, is ineligible to receive such benefits as a substitute claimant. Accordingly, her claim for financial assistance for automobile or other conveyance and adaptive equipment, or for adaptive equipment only, as well as specially adopted housing and a special home adaptation grant must be denied. Sabonis, 6 Vet. App. at 430. REASONS FOR REMAND As for the claim for service connection for a right foot disability, to include amputation, the Board finds an addendum opinion is required. Specifically, while the Board appreciates the January 2020 examiner's opinion, further clarification is warranted. The Board notes that in the 2016 informal conference hearing, the Veteran stated that his right foot/below knee amputation warrants a grant of service connection on a secondary basis due to hepatitis C and kidney failure resulting in a transplant. He stated that both the hepatitis C and the resulting kidney failure played a part in the right foot problems. It was discussed that his VA treatment records referencing his uncontrolled diabetes and the relationship between the diabetes and the subsequent below knee amputation, but the Veteran and his wife both contended that the diabetes could have developed due to the hepatitis C and at the very least it was permanently aggravated. The Veteran thereafter submitted medical literature in April 2016 which noted that complications from hepatitis C includes development of diabetes. In the 2019 Board hearing, the appellant read a statement from the Veteran prior to his death: "As a result of hep C, I now have a kidney transplant, high blood pressure, diabetes, irregular heartbeat, and I am taking almost 30 pills a day." The appellant also read an article she found from the internet that hepatitis C has a tendency to affect the development of diabetes. The January 2020 VA examiner provided an opinion that it is less likely than not that the right foot amputation was caused, or aggravated beyond its natural progression, by the service-connected residuals, kidney transplant; limitation of extension, left knee; instability, left knee; or hepatitis C. The examiner stated: "it is not uncommon for an individual with history of diabetes and tobacco use to develop peripheral vascular disease and subsequent limb amputation." The examiner further noted that medical literature does not support a relationship between the service-connected conditions and the right below the knee amputation and that there is also no evidence that these disabilities would aggravate the right below knee amputation beyond its natural progression. However, as noted above, the Veteran had submitted medical literature to the contrary, and the appellant read in her sworn testimony a piece from medical literature that also indicated a possible relationship between hepatitis C and diabetes. Here, the 2020 examiner provided an etiology for the right foot disability with amputation; but did not provide an adequate opinion as to causation or aggravation for the right foot disability. Rather, the examiner considered whether hepatitis C would cause or aggravate amputation but did not consider the contention that the hepatitis C caused or aggravated the Veteran's diabetes. As such, an addendum opinion is required which considers whether the service-connected hepatitis C played a role in the right foot condition and to determine if the diabetes was caused by or permanently aggravated by the service-connected hepatitis C; this is pertinent as the examiner and medical records note the Veteran underwent a right foot/below knee amputation due to uncontrolled diabetes mellitus. The matter is REMANDED for the following action: (1) Forward the claim file to the 2020 VA examiner, or another examiner if the 2020 examiner is not available, to obtain an addendum opinion regarding the Veteran's right foot disability. The claims file, including a copy of this remand, must be provided to the examiner in conjunction with the requested opinions. Please note, an examination is not possible as the Veteran passed away in 2017. Following a complete review of the electronic claims file, the examiner must provide an opinion as to whether: (a.) It is at least as likely as not (50 percent or greater probability) that the Veteran's diabetes mellitus was proximately caused by his service-connected disabilities, to include hepatitis C with residuals of kidney failure? (b.) If not, is it at least as likely as not (50 percent or greater probability) that the Veteran's diabetes mellitus was aggravated by his service-connected disabilities, to include hepatitis C with residuals of kidney failure? The examiner should specifically cite to any evidence that supports this opinion. The examiner is advised that a "permanent" worsening or increase in severity of the currently diagnosed right knee is NOT required to demonstrate "aggravation." Rather, aggravation is shown if there is any incremental increase in disability, meaning any additional impairment of earning capacity above the degree of disability existing before the increase, in a nonservice-connected disability resulting from a service-connected disability, regardless of its permanence. The examiner is asked to consider the following: The 2016 informal conference hearing statement from the Veteran that his right foot/below knee amputation is due to hepatitis C and kidney failure resulting in a transplant. He stated that both the hepatitis C and the resulting kidney failure played a part in the right foot problems. It was discussed that his VA treatment records referencing his uncontrolled diabetes and the relationship between the diabetes and the subsequent below knee amputation, but the Veteran and his wife both contended that the diabetes could have developed due to the hepatitis C and at the very least it was permanently aggravated. April 2016 submitted medical literature which noted that complications from hepatitis C include diabetes. In the 2019 Board hearing, the appellant read a statement from the Veteran prior to his death: "As a result of hep C, I now have a kidney transplant, high blood pressure, diabetes, irregular heartbeat, and I am taking almost 30 pills a day." The appellant also read an article she found from the internet that hepatitis C had a tendency to affect the development of diabetes. Rationale must be provided for opinions proffered. If the examiner determines a requested opinion is not possible without resort to mere speculation, then the examiner must explain why. (2) If upon completion of the above the issue remains denied, the appeal should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.