Citation Nr: 21014890 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 17-45 608 DATE: March 16, 2021 ORDER The appeal concerning eligibility for financial assistance in the purchase of one automobile or other conveyance and adaptive equipment or automobile adaptive equipment only is dismissed. REMANDED Entitlement to service connection for chronic kidney dysfunction is remanded. Entitlement to service connection for a skin disorder, to include skin cancer, neurotic eczema, and seborrheic keratosis is remanded. FINDING OF FACT Financial assistance in the purchase of an automobile or other conveyance and necessary adaptive equipment, or adaptive equipment only under 38 C.F.R. § 3.808 is not a “periodic monetary benefit” for which accrued benefits may be authorized; such benefit may not be awarded on a substitute basis. CONCLUSION OF LAW Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the claim for eligibility for financial assistance in acquiring an automobile or other conveyance and adaptive equipment or adaptive equipment only; it must be dismissed as moot. 38 U.S.C. §§ 3902, 5121(a), 5121A, 7105(d)(5); 38 C.F.R. §§ 3.808, 3.1000, 20.101(d); Gillis v. West, 11 Vet. App. 441 (1998). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the United States Marine Corps from August 1963 to August 1967. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). Unfortunately, the Veteran passed away in May 2016, while these appeals were pending. The appellant was the Veteran’s surviving spouse at the time of his death and has been substituted for the Veteran in continuing to pursue his claims. See 38 C.F.R. § 3.1010(a); Sucic v. Shulkin, 29 Vet. App. 121, 125-26 (2017). In February 2021, the appellant presented testimony at a virtual hearing held before the undersigned Veterans Law Judge. A copy of the transcript from that hearing is of record. The appeal concerning eligibility for financial assistance in the purchase of one automobile or other conveyance and adaptive equipment or automobile adaptive equipment only is dismissed. 38 U.S.C. § 5121A, the statute providing for a survivor to be substituted as the claimant for the purposes of processing a claim to completion, states the following: (a) Substitution- (1) 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 under section 5121(a) of this title 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. . . (b) Limitation- Those who are eligible to make a claim under this section shall be determined in accordance with section 5121 of this title. 38 U.S.C. § 5121 (payment of certain accrued benefits upon death of a beneficiary) provides, in pertinent part, as follows: (a) Except as provided in sections 3329 and 3330 of title 31, periodic monetary benefits (other than insurance and servicemen's indemnity) under laws administered by the Secretary to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death (hereinafter in this section and section 5122 of this title referred to as "accrued benefits") and due and unpaid, shall, upon the death of such individual be paid as follows: (1) Upon the death of a person receiving an apportioned share of benefits payable to a veteran, all or any part of such benefits to the veteran or to any other dependent or dependents of the veteran, as may be determined by the Secretary. (2) Upon the death of a veteran, to the living person first listed below: (A) The veteran's spouse… … (c) Applications for accrued benefits must be filed within one year after the date of death. If a claimant's application is incomplete at the time it is originally submitted, the Secretary shall notify the claimant of the evidence necessary to complete the application. If such evidence is not received within one year from the date of such notification, no accrued benefits may be paid. The threshold question that must be addressed here (as in any claim for VA benefits) is whether the appellant is a proper claimant for the benefits sought. The critical (and dispositive) question in this matter is whether the benefits sought are periodic monetary benefits. If not, they may not be awarded as accrued benefits. See 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. A claim for eligibility for financial assistance in acquiring an automobile or other conveyance and necessary adaptive equipment is not a claim for “periodic monetary benefits.” Rather, the statute and regulations provide for a lump sum 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). Therefore, such financial assistance is not payable as accrued benefits or on a substitute basis. See 38 U.S.C. §§ 5121, 5121A; 38 C.F.R. §§ 3.1000, 3.1010; Nolan v, Nicholson, 20 Vet. App. 340, 347-348 (2006). The law is dispositive in these matters. Sabonis v. Brown; 6 Vet. App. 426, 430 (1994). Therefore, the Veteran’s claims for such benefits do not survive his death, and the appellant is not eligible to substitute for such claims as a matter of law. Based on the foregoing, the Board finds that the Veteran’s claim on the merits seeking financial assistance in the purchase of one automobile or other conveyance and automobile adaptive equipment or automobile adaptive equipment only became moot by virtue of his death, and there is no valid claim nor specific allegation of error of fact or law remaining for the Board to consider. Accordingly, the appeal is dismissed. See 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.101(d). REASONS FOR REMAND Remand is found needed in order to provide an adequate medical opinion with respect to the remaining appeals. 1. Entitlement to service connection for chronic kidney dysfunction is remanded. Regarding his claim for service connection for chronic kidney dysfunction, the Veteran was provided with VA medical opinions in April 2015 and August 2016. The April 2015 medical opinion report noted that the Veteran served at Camp Lejeune for approximately two years but found that the Veteran’s chronic kidney disease was probably secondary to nephrosclerosis and also nephrolithiasis, and indicated that review of the medical literature shows that exposure to contaminated water at Camp Lejeune is not a risk factor for the development of either of these disorders. The August 2016 report states an opinion that the Veteran’s chronic kidney disease is less likely than not proximately due to or the result of his service-connected chronic lymphocytic leukemia (CLL), with the clinician indicating that the Veteran had a history of nephrolithiasis and chronic anti-inflammatory use, both of which were factors identified by the consulting nephrologist as the most likely etiology for the Veteran’s chronic kidney disease. At the January 2021 Board hearing, the appellant’s representative asserted that the Veteran’s kidney condition could have been in part due to anti-inflammatory medications taken for chronic musculoskeletal issues, for which service connection had previously been granted. The Board notes that an April 2011 dermatology progress note indicates that the Veteran had a past medical history of stage III kidney disease, hypertension, and pain medication for lower extremity and kidney pain, with a notation that the Veteran had been told that pain medicine may have injured his kidneys. The Veteran’s treatment records show that he reported to his mental health care providers that his leg and hip hurt all of the time (both due to service-connected disabilities), and that he additionally took Advil for his service-connected post-concussive headaches. He also reported to a February 2014 VA examiner that he was on daily aspirin for a “blood disorder.” On remand, a supplemental medical opinion should be sought to address this secondary theory of entitlement. 2. Entitlement to service connection for a skin disorder, to include skin cancer, neurotic eczema, and seborrheic keratosis is remanded. Regarding the claim for service connection for a skin disorder, VA medical opinions were provided in April 2015 and August 2016. The April 2015 report included a medical opinion that the Veteran’s basal cell skin cancer was less likely than not related to exposure to contaminated water at Camp Lejeune, because the medical literature did not show an association between exposure to contaminated water at Camp Lejeune and the development of basal cell skin cancer and the leading known risk factor is sun exposure, which the Veteran would have had from his residence in Florida and Colorado. The August 2016 report included an opinion that the Veteran’s skin cancer was less likely than not proximately due to or the result of his service-connected CLL. However, no opinion was provided as to whether the Veteran’s skin cancer was aggravated by his CLL, or whether the other skin conditions noted during the relevant appeal period (such as neurotic eczema and seborrheic keratosis) were at least as likely as not directly related to his in-service exposures to contaminated water at Camp Lejeune and/or Agent Orange and excess sun while serving in Vietnam. On remand, a supplemental opinion should be provided. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate medical professional (“clinician”) regarding whether the Veteran’s chronic kidney dysfunction was at least as likely as not related to his service-connected disabilities, to include NSAIDs taken for their treatment. The clinician should address the following: a. Is it at least as likely as not (50 percent or greater probability) that the Veteran’s chronic kidney dysfunction was related to his in-service exposure to Agent Orange? b. Is it at least as likely as not that the Veteran’s chronic kidney dysfunction was proximately caused by one or more of his service-connected disabilities, including but not limited to anti-inflammatory medication taken for the treatment of such disabilities? c. Is it at least as likely as not that the Veteran’s chronic kidney dysfunction was aggravated beyond its natural progression by one or more of his service-connected disabilities, to include the treatment of such (including but not limited to antiinflammatory medication taken for treatment of service-connected lower extremity and hip pain and post-concussive headaches)? d. Is it at least as likely as not that the Veteran’s chronic kidney dysfunction was aggravated beyond its natural progression by his service-connected chronic lymphocytic leukemia? A clear rationale must be provided for any opinion stated or conclusion rendered. 2. Obtain an addendum opinion from an appropriate medical professional (“clinician”) regarding the nature and etiology of the Veteran’s skin disorders present during the relevant appeal period, noted in treatment records as including skin cancer, neurotic eczema, and seborrheic keratosis. The clinician should address the following: a. Is it at least as likely as not that any of the skin conditions arose during or were otherwise related to the Veteran’s service, to include exposure to contaminated water at Camp Lejeune and exposure to sun and Agent Orange while serving in Vietnam? b. Is it at least as likely as not that the Veteran’s skin cancer was aggravated beyond its natural progression by his service-connected chronic lymphocytic leukemia? A clear rationale must be provided for any opinion stated and conclusion rendered. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Solomon, 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.