Citation Nr: 21024832 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 20-04 530A DATE: April 26, 2021 ORDER The claim for entitlement to special home adaptation grant is dismissed. FINDING OF FACT The Appellant is ineligible to substitute for the Veteran in the claim for special home adaptation grant because this benefit is not a “periodic monetary benefit” and this benefit was not granted to the Veteran prior to his death. CONCLUSION OF LAW Due to the Veteran’s death, the Board has no jurisdiction to adjudicate the merits of the claim for special home adaptation grant, such that it is dismissed as moot. 38 U.S.C. §§ 3902, 5121, 5121A, 7104(a); 38 C.F.R. §§ 3.808, 3.1000, 3.1010(a), 20.1302. REASONS AND BASES FOR FINDING AND CONCLUSION At the outset, the Board recognizes that there are other issues on appeal. The other issues on appeal are in different appeal streams are not before the Board currently. Additionally, any outstanding FOIA requests and or outstanding extension requests will be addressed and completed in conjunction with the other issues on appeal. Also, of note, as will be described below, the issue on appeal must be dismissed as a matter of law, so any due process or notice errors are not prejudicial to the Appellant. See Mason v. Principi, 16 Vet. App. 129 (2002) (holding that when the application of the law to the undisputed facts is dispositive, no discussion of VA’s duties to notify and assist is necessary); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (U.S. 1994) (holding that “where the law and not the evidence is dispositive, the claim should be denied or the appeal to the BVA terminated because of the absence of legal merit or the lack of entitlement under the law.”). Cf. FED. R. CIV. P. 12(b)(6) (‘failure to state a claim upon which relief can be granted’)”). The Veteran served on active duty in the United States Army from September 1953 to August 1956, from October 1956 to August 1968, and from August 1968 to November 1973. His awards and decorations include the National Defense Service Medal with Oak Leaf Cluster, the Vietnam Service Medal, and the Good Conduct Medal, among others. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2017 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). Unfortunately, during the course of the appeal to the AOJ, the Veteran passed away. He died in July 2019. The Appellant is the Veteran’s surviving spouse. A short time after his death, she filed a July 2019 Application for Dependency and Indemnity (DIC) (VA Form 21P-534EZ). This Application for DIC is also considered to be a pending claim for substitution because the Veteran had an appeal pending when he died. See 38 C.F.R. §§ 3.152(b)(2), 3.1010(c)(2). In a November 2019 VA decision, the AOJ accepted the Appellant as the Veteran’s substitute for purposes of processing his appeal to completion. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. See also 79 Fed. Reg. 52977 52985 (Sept. 5, 2014). A veteran may qualify for a grant for necessary special home adaptations if he has a service-connected disability that results in one of the enumerated conditions in 38 C.F.R. § 3.809a(b). At the time of the Veteran’s death a notice of disagreement had been filed to the November 2017 rating decision. A statement of the case was not issued until January 2020, six months after the unfortunate passing of the Veteran in July 2019. As a matter of law, appellants’ claims do not survive their deaths. Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994). This appeal on the merits has become moot by virtue of the death of the Veteran and must be dismissed without prejudice for lack of jurisdiction. See 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. Although the Appellant, as his lawful surviving spouse, has been substituted as the claimant for purposes of processing the appealed claim to completion, the substitution claims must be one for “periodic monetary benefits.” 38 U.S.C. § 5121; 38 C.F.R. §§ 3.1000(a), 3.1010(a). As a matter of law, a claim seeking financial assistance for a special home adaptation grant is not a claim for “periodic monetary benefits” as that term is defined under relevant VA statute and regulation for purposes of accrued benefits and substitution. See 38 U.S.C. §§ 5121, 5121A; 38 C.F.R. §§ 3.1000, 3.1010. The Court 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. § 5121 and, therefore, is not payable as an accrued benefit. See Pappalardo v. Brown, 6 Vet. App. 63 (1993). The Board recognizes that this case specifically addresses specially adapted housing. However, as specially adapted housing is considered to be a greater benefit to the applicant, and a special home adaptation grant is only considered when the applicant has been found to be ineligible for specially adapted housing, this Court case is also applicable a special home adaptation grant. In Pappalardo v. Brown the Court held that although specially adapted housing does not qualify as a “periodic monetary benefit,” it is not the dispositive issue. The dispositive issues, as a factual matter, are whether the grant had been approved by VA before the veteran’s death and, if so, whether VA would then have authority to make reimbursement to the appellant. In this regard, not only is a special home adaptation grant not a “periodic monetary benefit,” but at the time of the Veteran’s death, his appeal for entitlement to special home adaptation grant was pending. As such, this benefit had not been granted by VA before his death. Therefore, this specific issue is not eligible for substitution or consideration for accrued benefits and is thus excluded from the Appellant’s current substitution appeal. It follows that the adjudication of the claim for entitlement to special home adaptation grant on the merits has become moot by virtue of the Veteran’s death. See 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. Consequently, the claim must be dismissed for lack of jurisdiction as the Appellant is ineligible to substitute for the Veteran with respect to this particular claim. See 38 U.S.C. §§ 5121A, 7104(a). H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Talamantes, 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.