Citation Nr: 18148931 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-15 073A DATE: November 8, 2018 ORDER Payment or reimbursement for non-VA medical care under the Camp Lejeune Family Member Program (CLFMP) pursuant to 38 C.F.R. § 17.410 is dismissed. FINDING OF FACT The Veteran’s spouse died in March 2014, without having filed an appropriate application form; the Veteran is not a proper claimant for benefits under CLFMP pursuant to 38 C.F.R. § 17.410. CONCLUSION OF LAW As the Veteran is not a proper claimant, his November 2014 claim for payment or reimbursement for non-VA medical care under CLFMP pursuant to 38 C.F.R. § 17.410 is dismissed. 38 U.S.C. §§ 1787, 5107; 38 C.F.R. § 17.410. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from August 1966 to May 1973, with noted service at Camp Lejeune from December 1966 to January 1967, January 1969 to February 1969, and June 1969 to October 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 letter of determination by a Department of Veterans Affairs (VA) Financial Services Center (FSC). That decision by the VAFSC stems from an application for CLFMP benefits filed by the Veteran in November 2014. In general, VA will provide payment or reimbursement to Camp Lejeune family members for certain non-VA health care provided for covered illnesses and conditions listed under 38 C.F.R. § 17.400(b), which includes breast cancer. 38 U.S.C. § 1787; 38 C.F.R. §§ 17.400(b), 17.410. A Camp Lejeune veteran means any veteran who served at Camp Lejeune on active duty for at least 30 days (consecutive or nonconsecutive) during the period beginning on August 1, 1953, and ending on December 31, 1987. 38 C.F.R. § 17.400(b). A Camp Lejeune family member, as relevant to this case, is an individual who resided at Camp Lejeune for at least 30 (consecutive or nonconsecutive) days during the period beginning on August 1, 1953, and ending on December 31, 1987; and is related to a Camp Lejeune veteran by birth, was married to a Camp Lejeune veteran, or was a legal dependent of a Camp Lejeune veteran. 38 C.F.R. § 17.410(b). Finally, 38 C.F.R. § 17.410(c) indicates that an individual may apply for benefits under this section by completing and submitting an application form. Payment or reimbursement will only be provided under this section, however, if a timely claim for payment or reimbursement has been received by a Camp Lejeune family member or provider of care or services. See 38 C.F.R. § 17.410(d)(1). The Veteran seeks payment or reimbursement for non-VA medical care for his deceased spouse—as a Camp Lejeune family member—under CLFMP pursuant to 38 C.F.R. § 17.410. As background, the Veteran and his spouse were married in February 1969. The Veteran’s spouse eventually suffered from breast cancer and passed away in March 2014. The Veteran’s spouse, who is now deceased, called VA in May 2013, as noted in a Report of General Information, VA Form 21-0820, stating that she was “filing a claim for breast cancer due to the contaminat[ed] water[] at Camp Lejeune.” Of note, however, the Agency of Original Jurisdiction (AOJ) did not send the Veteran’s spouse a proper form for such claim of benefits. Moreover, the AOJ did not receive the CLFMP Application, VA Form 10-10068, from the Veteran’s spouse prior to her death in March 2014, although it appears that the AOJ began developing the CLFMP claim following the May 2013 telephone contact, as private medical records pertaining to the Veteran’s spouse were sought, obtained, and associated with the Veteran’s electronic claims file. In a November 2014 statement, the Veteran informed the AOJ that his spouse had passed away in March 2014; the AOJ retroactively removed the Veteran’s spouse from his dependency award in January 2015. Also in November 2014, the Veteran submitted a CLFMP Application, VA Form 10-10068, on behalf of his deceased spouse. It is from this CLFMP Application that the current appeal before the Board stems. The Board finds that the Veteran is not a proper claimant for CLFMP benefits pursuant to 38 C.F.R. § 17.410, and therefore the claim must be dismissed at this time. As noted above, VA regulations require that an individual must complete an application form—the prescribed VA Form in this case is the CLFMP Application, VA Form 10-10068—although payment can only be made if the application was submitted by a “Camp Lejeune family member” or a services/care provider seeking payment for such services. In this case, the Veteran is clearly not a service/care provider. Moreover, the Veteran in this case is a Camp Lejeune veteran himself, and therefore, he cannot meet the legal definition for a “Camp Lejeune family member,” as he cannot be married to, offspring of, or a legal dependent of himself in order to satisfy the requirements of 38 C.F.R. § 17.410(b). Accordingly, as the Veteran does not meet the requirements for a proper claimant in this case, the November 2014 CLFMP Application that the Veteran filed is not a proper claim before the Board and the Board must dismiss this claim in this case as VA cannot award payment or reimbursement to the Veteran in this case, as he is not a proper claimant for benefits under 38 C.F.R. § 17.410. See 38 C.F.R. §§ 17.410(c), 17.410(d)(1); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Instead, the Board reflects that the Veteran’s deceased spouse would have been a proper claimant for benefits, as she was legally married to the Veteran—who is a Camp Lejeune veteran—if she spent 30 days at Camp Lejeune during the Veteran’s period of service. The Board, however, need not reach the merits of the residency requirement in this case, as the Board cannot find that the Veteran’s spouse submitted a timely claim prior to her death in this case. Specifically, the Veteran’s spouse, although she made a telephone call in May 2013 indicating she wished to file a claim for Camp Lejeune contaminated water benefits based on her breast cancer (in short, indicating that she wished to file a CLFMP claim), the Veteran’s spouse did not submit the appropriate application form (VA Form 10-10068) prior to her death. The requirements of 38 C.F.R. §§ 17410(c) and 17.410(d)(1) therefore have not been met in this case and therefore the Board cannot find that the Veteran’s spouse filed a claim for CLFMP benefits under 38 C.F.R. § 17.410 at any time during her lifetime. See 38 C.F.R. § 17.410(c). Nevertheless, even if the Board were to find that a claim for CLFMP benefits was properly filed and was pending before VA at the time of her death in March 2014 based on the May 2013 telephone contact, the Board reflects that any such claim necessarily must have been dismissed at the time of her death, as appellants’ claims do not survive their deaths as a matter of law. 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). Likewise, any such pending claim for CLFMP benefits under 38 C.F.R. § 17.410 cannot be the subject of substitution in this case, as such benefits are one-time, lump-sum payments and are not periodic monetary benefits. See Gillis v. West, 11 Vet. App. 441, 442–43 (1998) (holding that an automobile-purchase-assistance payment under chapter 39 of title 38, U.S. Code, was not periodic in nature, quoting BLACK’S LAW DICTIONARY 1138 (6th ed.1990) that “periodic benefits” were defined as “recurring at fixed intervals; to be made or done, or to happen, at successive periods separated by determined intervals of time”); see also Pappalardo v. Brown, 6 Vet. App. 63, 65 (1993) (holding that a one-time payment for assistance for specially adapted housing under chapter 21 of title 38, U.S. Code, did not qualify as a periodic monetary benefit). Thus, even if the Board were to find that there was a pending CLFMP claim at the time of the Veteran’s spouse’s death, such claim cannot be the subject of an accrued benefits claim such that the claim would survive her death. See 38 C.F.R. § 3.1000. Thus, as CLFMP benefits under 38 C.F.R. § 17.410 are not periodic monetary benefits, the Board also need not reach the question of whether application of the law requires that the Board remand this case in order for the AOJ to explicitly contemplate whether the Veteran in this case is a proper substitute for any potentially pending CLFMP claim that may have been pending at the time of the Veteran’s spouse’s death in March 2014. In short, the Veteran is not a proper claimant in this case for a claim for payment or reimbursement for non-VA medical care under CLFMP pursuant to 38 C.F.R. § 17.410; as he is not a proper claimant for such benefits, the Board must dismiss this claim as a matter of law. See 38 U.S.C. § 1787; 38 C.F.R. §§ 17.410; Sabonis, supra. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Peters, Counsel