Citation Nr: A24029732 Decision Date: 06/06/24 Archive Date: 06/06/24 DOCKET NO. 230511-430512 DATE: June 6, 2024 ORDER The appeal for initial eligibility, to include any accrued benefits, under VA's Program of Comprehensive Assistance for Family Caregivers (PCAFC) is denied. FINDING OF FACT 1. At the time of the Veteran's death, he did not have a serious injury for purposes of basic PCAFC eligibility. 2. No benefit had accrued under the VA PCAFC at the time of the Veteran's death. CONCLUSION OF LAW The appeal for PCAFC benefits must be denied as a matter of law. 38 U.S.C. §§ 7104, 71.20, 5121, 5121A; 38 C.F.R. §§ 3.1000, 3.1010, 20.1302. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from April 1952 to October 1981. He was awarded the Air Force Commendation Medal with three Oak Leaf Clusters and the Vietnam Service Medal, among other decorations, for this service. He died in December 2021 and the Appellant is his surviving daughter. In the May 2023 notice of disagreement (NOD), the Appellant elected the direct review docket. Therefore, the Board may only consider the evidence of record that was before the Agency of Original Jurisdiction at the time of the July 2021 application determination on appeal. 38C.F.R. § 20.303. Benefits under VA's PCAFC. The Appellant in this case is the Veteran's surviving daughter and applicant for benefits under the VA's PCAFC program. Unfortunately, in December 2021 the Veteran died prior to both final approval of participation in the PCAFC and the initiation of this appeal. The Appellant contends that entitlement to accrued benefits are warranted for the period of care prior to the Veteran's death. After review of the evidence, the Board finds that as a matter of law it is unable to grant any benefits under the PCAFC. As an initial matter, the Board thanks the Veteran's caregiver-daughter for her dedication to the care of the Veteran. By history, the Appellant submitted a July 2021 application for participation in the PCAFC. At the July 2021 application intake, it was determined that the Veteran did not meet the basic eligibility requirements for benefits under the PCAFC. Specifically, the AOJ determined that the Veteran did not have a serious injury incurred or aggravated in the line of duty in active service. The AOJ detailed that this requirement is met with any service-connected disability that (1) is rated at 70 percent or more by VA; or (2) is combined with any other service-connected disability or disabilities, and a combined rating of 70 percent or more is assigned by VA. Basic eligibility for PCAFC requires the applicant to be a veteran who has a serious injury (including traumatic brain injury, psychological trauma, or other mental disorder) incurred or aggravated in the line of duty. 38 U.S.C. § 1720G(a)(2). "Serious injury" means any service-connected disability that: (1) Is rated at 70 percent or more by VA; or (2) Is combined with any other service-connected disability or disabilities, and a combined rating of 70 percent or more is assigned by VA. 38 C.F.R. § 71.15 "Serious Injury." Here, the evidence and procedural history are clear. The Veteran was service connected for (1) bilateral hearing loss, evaluated at 10 percent; (2) tinnitus, evaluated at 10 percent; (3) chronic sinusitis, evaluated at 0 percent; and (4) tinea versicolor, evaluated at 0 percent. The Veteran's combined disability rating is 40 percent. The Veteran's service-connected disability rating of 40 percent does not meet the legal threshold to qualify as a "serious injury" for purposes of basic PCAFC eligibility. As such, basic eligibility for PCAFC cannot be granted. Because basic eligibility criteria have not been met, the Board need not address any other arguments for entitlements to benefits under the PCAFC in this decision. There is no reasonable doubt to be resolved in the Veteran's favor and eligibility is not warranted. The Board is mindful that the notification letters sent in this case are not entirely compliant with 38 U.S.C. § 5104. See 38 U.S.C. § 1720(G)(12). However, there is no basis upon which to award the benefit sought in this case as a matter of law. Hence, any error is nonprejudicial, and remand for correction of this error would not have a reasonable possibility of aiding in substantiating the claim. See 38 C.F.R. § 20.802 (a). The Board is sympathetic to the Appellant's argument. However, here, the Board is bound by law. While the Board is sympathetic, 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)). Therefore, this appeal must be dismissed as a matter of law. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. As such, entitlement to initial eligibility for benefits under the PCAFC is denied. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Teague, 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.