Citation Nr: 0001468 Decision Date: 01/18/00 Archive Date: 01/27/00 DOCKET NO. 98-13 839A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to Service Disabled Veteran's (RH) Insurance under 38 U.S.C.A. § 1922 (West 1991). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant and her son ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The veteran served on active duty from April 1953 to October 1955. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a July 1996 decision of the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania (IC), which denied the veteran's claim for RH Insurance. FINDINGS OF FACT 1. The veteran was awarded compensation under 38 U.S.C.A. § 1151 (West 1991) for malignant neoplasm of the genitourinary system (100%) by a rating decision dated June 1996, which permits the disability to be treated for VA purposes "as if" it were service incurred. 2. The veteran died in April 1997 of carcinoma of the prostate with widespread metastasis and Death and Indemnity Compensation under 38 C.F.R. § 1151 was granted the appellant. 3. The veteran was not "service connected" for any disability at the time of his death and a claim for service connection was not pending at the time of his death. CONCLUSION OF LAW Basic eligibility for entitlement to Service Disabled Veterans' (RH) Insurance under 38 U.S.C.A. § 1922 has not been shown. 38 U.S.C.A. §§ 1151, 1922 (West 1991); 38 C.F.R. § 20.101 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant, the veteran's widow, seeks Service Disabled Veterans' (RH) Insurance. Historically, we observe that, by a rating decision dated June 1996, the veteran was awarded compensation under 38 U.S.C.A. § 1151 for malignant neoplasm of the genitourinary system (100%), which permits the disability to be treated for VA purposes "as if" this condition were service incurred. See 38 U.S.C.A. § 1151 (West 1991); 38 C.F.R. § 3.358 (1999). The letter notifying the veteran of the grant of benefits further indicated that this award would not necessarily entitled him to any "ancillary" benefits, such as educational benefits, vocational rehabilitation, CHAMPVA, etc. In July 1996, he timely filed a claim for RH insurance, which was denied by the IC. The veteran was notified of that decision August 1996. The appellant, on behalf of the veteran who was terminally ill, expressed her dissatisfaction with that decision and, in essence, argued that service connection for any disability pursuant to 38 U.S.C.A. § 1151 was sufficient to establish basic eligibility for RH insurance. The IC responded to the appellant in multiple letter, indicating that the grant of compensation to the veteran pursuant to 38 U.S.C.A. § 1151 did not create the presence of "service-connected disability;" but rather, the compensated condition was merely to be treated for VA purposes "as if" it were a service-connected disability, but in fact the veteran had no service-incurred disabilities. A death certificate reflects that the veteran died in April 1997 of carcinoma of the prostate with widespread metastasis. Death and Indemnity Compensation under 38 C.F.R. § 1151 was granted the appellant. At the time of the veteran's death, no claim for service connection was pending. At a videoconference hearing in February 1999, the appellant and her son testified concerning the facts underlying the grant of compensation pursuant to 38 U.S.C.A. § 1151, and indicated that they believed the veteran should be treated like any other service-connected veteran, without restrictions. Under the provisions of 38 U.S.C.A. § 1922, a veteran may be entitled to RH insurance when it is determined that he has a compensable service-connected disability and he applies in writing for such insurance within two years of the date service connection was granted. 38 U.S.C.A. § 1922 (West 1991). If a veteran is found to be service connected disabled after his death, a successful application for RH insurance is presumed under the law. 38 U.S.C.A. § 1922(b) (West 1991). In the present case, service connection has not been granted for any disability and no such claim was pending at the time of the veteran's death. As noted above, the law requires all applicants for RH insurance to have a compensable service- connected disability. 38 U.S.C.A. § 1922(a) (West 1991). Because the veteran has no such service-connected disability, he is ineligible for RH insurance under the law. While compensation was awarded the veteran and his widow under the provisions of 38 U.S.C.A. § 1151, this does not establish that the veteran had service-incurred disability. The so- called grant of service connection for disability arising from VA medical hospitalization, medical or surgical treatment (38 U.S.C.A. § 1151) does not thereafter entitled the recipient (or his survivors) to the identical benefits offered those veteran's who actually incurred service-related disability. In this case, the veteran's disability was incurred remote from his period of service and was entirely unrelated thereto. In those cases where the law and not the evidence is dispositive, the claim must be denied on the basis that there is an absence of legal merit or that the claimant lack entitlement under the law. Sabonis v. Brown, 6 Vet.App. 426 (1994). Here, the law is dispositive because the appellant has not established basic eligibility under the law for RH insurance. Therefore, the benefit sought on appeal must be denied. ORDER The claim for RH insurance is denied. C.P. RUSSELL Member, Board of Veterans' Appeals