BVA9505755 DOCKET NO. 93-12 904 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUES 1. Entitlement to a certificate of eligibility for financial assistance in the purchase of an automobile or other conveyance or specially adapted equipment. 2. Entitlement to eligibility for specially adapted housing or special home adaptation. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Theresa M. Catino, Associate Counsel INTRODUCTION The veteran served on active duty from April 1956 to January 1976. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the regional office (RO) erred in denying his claim of entitlement to a certificate of eligibility for financial assistance in the purchase of an automobile or other conveyance or specially adapted equipment and his claim of entitlement to eligibility for specially adapted housing or special home adaptation. He asserts that, because he became disabled as a result of medical treatment he received at a VA facility, he should be entitled to these ancillary benefits. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim of entitlement to a certificate of eligibility for financial assistance in the purchase of an automobile or other conveyance or specially adapted equipment and that the preponderance of the evidence is against the claim of entitlement to eligibility for specially adapted housing or special home adaptation. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claim has been obtained insofar as possible. 2. Service connection for radiation nerve damage of both lower extremities was granted under 38 U.S.C.A. § 1151 (West 1991) based on the finding that these disabilities were the result of medical treatment received at a VA facility. 3. 38 U.S.C.A. § 1151 grants compensation benefits under chapters 11 and 13 of title 38; the grant of benefits under 38 U.S.C.A. § 1151 does not confer entitlement to ancillary benefits provided under chapters 21 and 39. CONCLUSIONS OF LAW 1. The criteria for a certificate of eligibility for financial assistance in the purchase of an automobile or other conveyance or specially adapted equipment have not been met. 38 U.S.C.A. §§ 1151, 3901-4, 5107 (West 1991); 38 C.F.R. §§ 3.800(a), 3.808 (1994). 2. The criteria for entitlement to eligibility for specially adapted housing or special home adaptation have not been met. 38 U.S.C.A. §§ 1151, 2101-6, 5107 (West 1991); 38 C.F.R. §§ 3.800(a), 3.809 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In an August 1988 rating decision, the RO granted service connection for radiation nerve damage of both of the lower extremities. The RO rated the radiation nerve damage to the veteran's right lower extremity as 80 percent disabling, effective from October 1985, and evaluated the radiation nerve damage to his left lower extremity as 60 percent disabling, effective from October 1985. The RO based this determination on a report from the VA Medical Center (VAMC) in Kansas City, Missouri, which indicated that, after the veteran complained of back pain, he was found to have a hemangioma localized at the L3 level and was treated with 5,000 rads of radiation to the lumbar area centered on the L3 lumbar body. Approximately, two years after the radiation treatment, the veteran showed 30 to 70 percent weakness of all muscle groups in the lower extremities. The report from the VAMC indicated that the preferred method of therapy would have been to embolise the feeding arteries and that the radiation therapy which was used is considered to be a controversial method of treatment. The report concluded that the hemangioma was inappropriately treated with radiation, that the veteran now suffers from radiation-induced changes, and that the damage to his lower extremities is permanent and irreversible. Consequently, the RO granted service connection for lower extremity disability based on the provisions of 38 U.S.C.A. § 351 (West 1991) (now 38 U.S.C.A. § 1151). VA examination conducted in March 1991 included a diagnosis of paraplegia secondary to hemangioma with radiation. The examiner specifically noted that the veteran is a "massive" paraplegic in a wheelchair. Based on this current disability, the veteran requests entitlement to a certificate of eligibility for financial assistance in the purchase of an automobile or other conveyance or specially adapted equipment and entitlement to eligibility for specially adapted housing or special home adaptation. The veteran claims that he is entitled to these benefits because he became disabled as a result of medical treatment he received at a VA facility. According to the provisions of 38 U.S.C.A. § 1151, when a veteran suffers an injury, or an aggravation of an injury, as the result of medical treatment awarded under any of the laws administered by the Secretary or as a result of having submitted to an examination under any such law but not as a result of such veteran's own willful misconduct, and such injury or aggravation results in additional disability to, or the death of, such veteran, disability or death compensation under this chapter [chapter 11] and dependency and indemnity compensation under chapter 13 of this title shall be awarded. 38 U.S.C.A. § 1151 (West 1991). The law clearly provides that a veteran who receives disability compensation based on 38 U.S.C.A. § 1151 is only entitled to benefits under chapters 11 and 13 of title 38. The laws and regulations further provide for the grant of automobile and adaptive equipment and specially adapted housing for veterans under certain circumstances. Significantly, however, these benefits are established under chapters 39 and 21. 38 U.S.C.A. §§ 2101-2106, 3901-3904 (West 1991); 38 C.F.R. §§ 3.808 and 3.909 (1994). In 38 U.S.C.A. § 3901, an eligible person is defined as one who is entitled to compensation under Chapter 11 for pertinent disabilities if the disability is the result of an injury incurred, or disease contracted, in or aggravated by active military service. As noted above, 38 U.S.C.A. § 1151 benefits are paid in the same manner as compensation for service-connected disability to the veteran. However, as the Board of Veterans' Appeals (Board) has previously stated, 38 U.S.C.A. § 1151 only grants chapter 11 and chapter 13 benefits. Service connection in the present case was granted for radiation nerve damage to the lower extremities based on the provisions of 38 U.S.C.A. § 1151. Clearly, the benefits that the veteran currently requests, provided under chapters 21 and 39, are beyond the scope of the grant of benefits provided under 38 U.S.C.A. § 1151. Consequently, the veteran is not entitled to the benefits sought on appeal, which are chapter 21 and chapter 39 benefits, on the basis of the grant of service connection for his lower extremity disability under 38 U.S.C.A. § 1151. VA practice is consistent with these laws. According to such practice, disability which is acquired subsequent to discharge from service as a result of treatment in a VA medical facility, even though compensation is payable under 38 U.S.C.A. § 1151 and 38 C.F.R. § 3.800(a), does not qualify a veteran for chapter 39 benefits (automobile or other conveyance and adaptive equipment) or for chapter 21 benefits (specially adapted housing or special home adaptation). VA Adjudication Procedure Manual, M21-1, Part IV, para. 23.07(a) and 23.08(d) (1994). In any event, the law clearly states that 38 U.S.C.A. § 1151 only allows for chapter 11 and chapter 13 benefits under title 38. Therefore, the veteran in the present case is not entitled to chapter 21 and chapter 39 benefits because the grant of service connection for his lower extremity disability was based on 38 U.S.C.A. § 1151. The United States Court of Veterans Appeals (Court) has recently held that, where the law is dispositive and there is no authority in the law to permit the VA to grant a veteran's request for benefits, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet.App. 426, 430 (1994). In the present case, the law is dispositive, and there is no authority in the law which would permit the Board to grant the veteran's request for chapter 21 and chapter 39 benefits. Consequently, the veteran's claim must be denied. In a November 1993 statement, the veteran's representative requested that, if the Board denied the veteran's claim for chapter 21 and chapter 39 benefits, the Board send the case to the VA General Counsel for an opinion regarding the veteran's eligibility. However, because the law is dispositive in this case and there is no authority in the law which would permit the Board to grant the benefits that the veteran seeks, requesting an opinion from the VA General Counsel would be fruitless. ORDER Entitlement to a certificate of eligibility for financial assistance in the purchase of an automobile or other conveyance or specially adapted equipment is denied. Entitlement to eligibility for specially adapted housing or special home adaptation is denied. V. L. JORDAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.