           UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


                                            NO . 00-242

                                 BETTY L. ALLEMAN, APPELLANT ,

                                                 V.


                                    ANTHONY J. PRINCIPI,
                          SECRETARY OF VETERANS AFFAIRS, APPELLEE.


                          On Appeal from the Board of Veterans' Appeals


(Argued July 16, 2002                                                 Decided August 21, 2002 )



         Helen Randolph was on the brief for the appellant.

      Tim S. McClain, General Counsel; Ron Garvin, Assistant General Counsel; and Michael A.
Leonard, Deputy Assistant General Counsel were on the brief for the appellee.

         Before FARLEY, HOLDAWAY, and GREENE, Judges.

         HOLDAWAY, Judge: The appellant, the widow of a veteran awarded compensation under
38 U.S.C. § 1151, appeals from a January 2000 decision of the Board of Veterans’ Appeals (BVA
or Board) that denied basic eligibility for entitlement to Service Disabled Veterans' Insurance (SDVI)
under 38 U.S.C. § 1922. The appellant filed a brief requesting oral argument and seeking a reversal
of the Board's decision, the Secretary filed a brief seeking affirmance of the Board's decision, and
the appellant filed a reply. Subsequently, following the Secretary's unopposed motion, the Court
ordered each party to submit a supplemental memorandum of law addressing the impact of
Kilpatrick v. Principi, 16 Vet.App. 1 (2002), on the present case. Each party responded, and the case
came before the Court for oral argument on July 16, 2002. The Court has jurisdiction of the case
under 38 U.S.C. § 7252(a). For the following reasons, the Court will affirm the decision of the
Board.
                                            I. FACTS
        In the present case, the facts are not in dispute. The appellant's late husband, John W.
Alleman, served on active duty in the U.S. Air Force from April 1953 until October 1955.
        In September 1992, the veteran went to a VA clinic, complaining of having difficulty
urinating, urinating frequently, and suffering from impotence. The outpatient treatment report
indicated that the veteran's prostate was not enlarged, but a possible nodule was found. The doctor's
impression was impotence and a prostate problem. The report notes that the veteran was scheduled
to undergo a follow-up examination in the genitourinary clinic the following month; however,
because of VA's failure to notify the veteran of the follow-up appointment, he did not appear for the
appointment.
        In June 1994, a VA physician treated the veteran for a fractured rib and generalized pain. A
rectal examination conducted at that time revealed a malignant prostate. The veteran underwent a
bilateral orchiectomy. The treating physician opined that there was improper follow-up to the
veteran's September 1992 clinic appointment and that additional tests should have been done at that
time.
        In a June 1996 decision of a VA regional office (RO), VA compensated the veteran under
38 U.S.C. § 1151 for malignant neoplasms of the genitourinary system and for malignant growth of
bone secondary thereto, and rated both as 100% disabling, with special monthly compensation,
effective December 1995. On June 24, 1996, the RO sent the veteran a letter notifying him of the
decision and explained that because he was awarded compensation under 38 U.S.C. § 1151, he was
not eligible for certain "ancillary benefits"; but, no specific reference was made to insurance.
        In July 1996, the veteran applied for SDVI under 38 U.S.C. § 1922. In August 1996, a
Regional Office and Insurance Center (IC) denied the veteran's application, explaining that his
compensation under 38 U.S.C. § 1151, which was awarded "as if" the disability were service-
connected, did not make him eligible for SDVI because the disability itself was not service-
connected. On the veteran's behalf, the appellant wrote to the IC complaining of the denial of SDVI,
and in January 1997, she attempted to file a Notice of Disagreement (NOD) on his behalf.
        On April 27, 1997, the veteran died. In May 1997, the appellant filed claims for Dependency
and Indemnity Compensation (DIC) and SDVI. The RO granted the appellant's claim for DIC but


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denied the appellant's claim for SDVI, explaining that only veterans with service-connected
disabilities can obtain the insurance. In June 1998, the appellant filed an NOD to the denial of
insurance benefits. A hearing was held on the insurance claim in July 1998, and a Statement of the
Case was issued. The appellant completed her appeal to the Board in September 1998. A hearing
was held before the Board in February 1999.
        On January 18, 2000, the Board issued a decision denying the appellant's claim to entitlement
to SDVI under 38 U.S.C. § 1922. The Board found that the veteran was not service connected for
any disability at the time of his death. The Board noted that under the provisions of 38 U.S.C.
§ 1922, a veteran may be entitled to SDVI if he has a service-connected disability and he applies for
the insurance within two years of the grant of service connection. However, the Board found that
an award of compensation for all purposes under 38 U.S.C. § 1151 is not equivalent to an award of
service connection for all purposes, and does not entitle the veteran to the identical benefits afforded
to veterans who have a service-connected disability.


                                            II. ANALYSIS
                               A. Section 1151 Benefits and Case Law
        The question of whether a veteran receiving compensation under 38 U.S.C. § 1151 is entitled
to chapter 19 benefits, specifically SDVI, is an issue of first impression before the Court. This issue
is a question of law, and therefore the Board's decision in this matter is reviewed by this Court de
novo. See Pappalardo v. Brown, 6 Vet.App. 63, 64 (1993).
        The appellant's spouse was awarded compensation under 38 U.S.C. § 1151, which provides
in pertinent part:
                Where any veteran shall have suffered an injury, or an aggravation of an
        injury, as the result of hospitalization, medical or surgical treatment . . . not the 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 and [DIC] under chapter 13 of this title shall be awarded in the
        same manner as if such disability, aggravation, or death were service-connected.
38 U.S.C. § 1151 (emphasis added). In Gardner v. Derwinski, 1 Vet.App. 584 (1991), aff'd sub nom.
Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd sub nom Brown v. Gardner, 513 U.S. 115
(1994), the Court emphasized that the plain meaning of a statute "must be given effect unless a

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'literal application of [it] will produce a result demonstrably at odds with the intention of the
drafters.'" Gardner v. Derwinski, 1 Vet.App. 584, 586-87 (quoting Griffin v. Oceanic Contractors,
Inc., 458 U.S. 564 (1982)). Only where a statute's plain meaning leads to such an absurd result that
Congress clearly never could have intended it is this "plain meaning rule" abandoned for a review
of the applicable legislative history and statutory construction. Id. at 587-88. See also Thayer v.
Principi, 15 Vet.App. 204, 210 (2001) (en banc) (holding that when interpreting statute, Court must
avoid "[a] conclusion that . . . is not supported when construing every part or section of the statute
and would yield an absurd result").
       In Mintz v. Brown, 6 Vet.App. 277 (1994), the Court considered whether the widow of a
veteran awarded compensation under 38 U.S.C. § 1151 was entitled to Chapter 23 benefits for burial
costs. In analyzing 38 U.S.C. § 1151, the Court noted:
       The plain meaning of 38 U.S.C. § 1151 is unambiguous: a finding of "as if" service
       connection creates entitlement in appropriate instances to "disability or death
       compensation under [chapter 11] and [DIC] under chapter 13 of" title 38;
       conspicuously absent is any reference to chapter 23. Therefore, a claimant receiving
       a favorable ruling of "as if" service connection under that section would be entitled
       to any applicable benefits under chapters 11 or 13. However, such a claimant would
       not be entitled to chapter 23 burial benefits, including reimbursement of $1500 under
       38 U.S.C. § 2307, unless service connection is established under a statutory provision
       other than 38 U.S.C. § 1151. Simply stated, a determination of "as if" service
       connection under 38 U.S.C. § 1151 may create entitlement to benefits under chapters
       11 and 13, but not to benefits under chapter 23.

Mintz, 6 Vet.App. at 282-83. Clearly, a veteran who has been awarded benefits under 38 U.S.C.
§ 1151 is not considered to have been awarded service connection for purposes of receiving all
ancillary benefits offered for veterans with service-connected disabilities. On the contrary, the Court
ruled in Mintz that such a veteran is entitled only to chapter 11 benefits, DIC benefits under chapter
13, and to benefits under Chapter 23 only if "service connection is established under a statutory
provision other than 38 U.S.C. § 1151." Mintz, 6 Vet.App. at 283.
       Recently, this Court considered whether a veteran receiving compensation under 38 U.S.C.
§ 1151 is entitled to receive chapter 21 and/or chapter 39 ancillary benefits in Kilpatrick, supra. The
Court determined that such a veteran is entitled to chapter 21 ancillary benefits because the
applicable statute in that case, 38 U.S.C. § 2101(a), authorized such benefits for "any veteran who


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is entitled to compensation under chapter 11 of this title." Id. at 5. A veteran receiving
compensation under 38 U.S.C. § 1151 clearly is entitled to benefits under chapter 11, and therefore,
the Court ruled, is eligible for chapter 21 benefits. The Court did not decide the issue of eligibility
to receive chapter 39 benefits by virtue of 38 U.S.C. § 1151 entitlement, as it remanded that issue
for reconsideration, determining that the BVA had erred in its interpretation of a general counsel
precedential opinion.
       The Secretary, in both his supplemental memorandum of law and at oral argument, argues
that the Court's decision in Kilpatrick has, in effect, been overruled by Gallegos v. Principi, 283 F.3d
1309 (Fed. Cir. 2002), a recent decision of the U.S. Court of Appeals for the Federal Circuit (Federal
Circuit). The Secretary argues that in Kilpatrick the Court did not give proper deference to a
regulation promulgated by VA, and that the Federal Circuit in Gallegos overturned a Court decision
that, it ruled, had failed to give proper deference to a VA regulation relating to NOD requirements.
The Court notes that as there is no regulation at issue in the present case, nor is there any Agency or
Department interpretation of section 1922 for our consideration, the question of deference does not
arise. The Court finds the operative language in 38 U.S.C. § 1922 distinguishable from the language
at issue in Kilpatrick, and will affirm the Board's decision under principles set forth in Mintz (and,
incidentally, applied in Kilpatrick as well), as explained infra. We therefore need not reach the
question of whether, regarding giving proper deference to a VA regulation, the Federal Circuit has
implicitly overruled Kilpatrick in Gallegos.
                                  B. Chapter 19 Ancillary Benefits
       Neither Mintz nor Kilpatrick afforded the Court an opportunity to consider a veteran's
entitlement to chapter 19 benefits by virtue of an award of compensation under 38 U.S.C. § 1151.
In Mintz and Kilpatrick, the Court clarified that a veteran receiving 38 U.S.C. § 1151 compensation
is eligible for benefits (other than chapter 11 and DIC benefits) only if language in another statutory
provision so permits. Mintz, 6 Vet.App. at 283; Kilpatrick, 16 Vet.App. at 5. Therefore, the Court
now turns to the language in chapter 19.
       The appellant seeks life insurance benefits for her deceased veteran husband under 38 U.S.C.
§ 1922. Subsection (a) reads, in pertinent part:




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        Any person who is released from active military, naval, or air service, under other
        than dishonorable conditions . . . and is found by the Secretary to be suffering from
        a disability or disabilities for which compensation would be payable if 10 per centum
        or more in degree . . . shall, upon application in writing made within two years from
        the date service-connection of such disability is determined by the Secretary and
        payment of premiums as provided in this subchapter, be granted insurance by the
        United States against the death of such person occurring while such insurance is in
        force.

38 U.S.C. § 1922(a) (emphasis added). In short, in order for a veteran to be eligible for SDVI, he
or she must apply for it within two years of being awarded service connection for a disability, which
would entitle the veteran to compensation if rated at 10% or more.
        The Court rejects the appellant's argument that the term "service connection" in the above-
cited statute is simply used as a "time marker." The Court is bound by the definitions of terms
provided in the statutes and regulations, and there is no basis for interpreting the language as the
appellant would have us do. As defined in 38 C.F.R. § 3.1(k), "Service connected means, with
respect to disability or death, that such disability was incurred or aggravated, or that death resulted
from a disability incurred or aggravated, in line of duty in the active military, naval, or air service."
38 C.F.R. § 3.1(k) (2001). In the present case, the veteran was not awarded service connection for
any disability. The veteran was awarded compensation under a different premise entirely: the
veteran suffered harm as a result of medical treatment at a VA clinic. This harm entitled him to
chapter 11 benefits and entitled his spouse to chapter 13 DIC benefits after his death, under 38
U.S.C. § 1151, simply because that statute permits such an award for a veteran who suffers a harm
resulting from VA medical care "as if such disability, aggravation, or death were service-connected."
38 U.S.C. § 1151 (emphasis added). The statute does not confer on such a veteran the status of
service connection, but rather permits the disability to be treated as if it were service connected in
certain limited circumstances – namely, for the purpose of receiving chapter 11 benefits and chapter
13 DIC benefits.
        The appellant points out that the RO's June 1996 decision granting the veteran 38 U.S.C.
§ 1151 benefits uses the language of "service connection" when describing his award of benefits.
However, in the context of the explanation provided in that decision, and in light of the statute relied
upon to award such benefits, it is clear that the RO was awarding compensation under 38 U.S.C.


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§ 1151 for the veteran's malignant neoplasms of the genitourinary system and for his malignant bone
growth, not service connection. In light of the wording of both 38 U.S.C. § 1151 and 38 U.S.C.
§ 1922, the Court holds that a veteran receiving compensation under 38 U.S.C. § 1151 is not eligible
for SDVI benefits under chapter 19.


                                       III. CONCLUSION
       After consideration of the pleadings, the record, and the positions taken at oral argument, the
Court holds that the appellant has not demonstrated that the Board committed either legal or factual
error that would warrant reversal or remand.         The January 2000 decision of the Board is
AFFIRMED.


       FARLEY, Judge, concurring: In an order dated March 27, 2002, the Court required the
parties to address the impact of Kilpatrick v. Principi, 16 Vet.App. 1 (2002), if any, on this case.
Both parties in this matter argued that the Court could decide the matter in their favor irrespective
of the Court's decision in Kilpatrick. I agree, and although I concur in the opinion of the majority,
I write separately merely to emphasize this point.
       In Mintz v. Brown, 6 Vet.App. 277 (1994), we held that 38 U.S.C. § 1151 does not entitle its
beneficiaries to the same benefits as veterans who have service-connected disabilities. Excepted are
benefits available in chapters 11 and 13 of title 38 because specific references to those chapters
appear in § 1151. Thus, the Court held in Mintz that 38 U.S.C. § 2307, which authorizes the
payment by VA of funeral and burial expenses for veterans who die "as the result of a service-
connected disability or disabilities," does not authorize payment to veterans who had been awarded
benefits under 38 U.S.C. § 1151, unless that veteran had been awarded service-connection under
some other section. Nothing in Mintz precluded, nor could it have precluded, Congress from
authorizing the payment of any other benefits under title 38 to veterans receiving benefits under 38
U.S.C. § 1151.
       The Court in Kilpatrick found that, while section 1151 does not authorize the payment of
specially adaptive housing benefits, payment of such benefits to section 1151 beneficiaries was
authorized by section 2101. The Court concluded that the phrase in section 2101 "any veteran


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entitled to compensation under chapter 11 of [title 38]" encompassed veterans receiving benefits
under section 1151. Kilpatrick did not find the immediately following phrase in section 2101, "for
permanent and total service-connected disability," to have limited the scope of the first, broader
portion of the sentence. I believe a better reading of that language is that the second clause modifies
the first and specifically excludes section 1151 beneficiaries, rather than the first clause expanding
the second to include section 1151 beneficiaries. Irrespective of its questionable merit and uncertain
longevity, however, as both parties have demonstrated in their supplemental briefs and at oral
argument in this matter, nothing in Kilpatrick impinges upon our interpretation of the statute, 38
U.S.C. § 1922, which is before us today.
       Section 1922 makes insurance available to veterans "found by the Secretary to be suffering
from a disability or disabilities for which compensation would be payable at 10 per centum or more
in degree" if an application is made "within two years from the date service-connection of such
disability is determined by the Secretary." 38 U.S.C. § 1922(a). Just as the burial benefits sought
in Mintz were not enumerated in section 1151, the insurance benefits at issue here are not specifically
provided for in section 1151. Nor does the plain language of section 1922 specifically include
veterans receiving benefits under section 1151. In order for "any person" to apply for benefits "within
two years from the date service-connection . . . is determined," service connection must be
determined. A veteran receiving compensation only under 38 U.S.C. § 1151 has never had any
disability found to be service connected. Thus, he or she cannot meet the requirements to receive
benefits under section 1922.




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