Citation Nr: 21062821 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 16-41 794 DATE: October 12, 2021 ORDER The claim of entitlement to specialty adapted housing is denied. FINDING OF FACT Assistance in acquiring specially adapted housing is not a "periodic monetary benefit" for which accrued benefits are payable. CONCLUSION OF LAW As a matter of law, the appellant may not receive assistance in acquiring specially adapted housing on an accrued basis. 38 U.S.C. §§ 2101(a), 5121(a); 38 C.F.R. §§ 3.809, 3.1000. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Army from November 1968 to June 1971. The instant matter is on appeal from a June 2015 rating decision. Later that month, the Veteran passed away. His widow filed a request for substitution in the present matter. In her August 2016 Substantive Appeal, the Appellant requested a hearing at a local VA office. In multiple subsequent communications, her representative clarified that they were requesting a Decision Review Officer (DRO) hearing, and not a hearing before a Veterans Law Judge. A DRO hearing occurred in March 2018, and a transcript has been associated with the claims file. Thus, the Board finds that the Appellant withdrew her request for a Board hearing. 1. The claim of entitlement to specialty adapted housing The Appellant asserts entitlement to specialty adapted housing benefits as construction on her home began prior to the Veteran's passing and was ordered to allow him reasonable access to bathroom facilities while in hospice care. Under 38 U.S.C. § 5121: (a) Except as provided in sections 3329 and 3330 of title 31, periodic monetary benefits (other than insurance and servicemen's indemnity) under laws administered by the Secretary to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death (hereinafter in this section and section 5122 of this title referred to as "accrued benefits") and due and unpaid, shall, upon the death of such individual be paid as follows: (2) Upon the death of a veteran, to the living person first listed below: (A) The veteran's spouse... (c) Applications for accrued benefits must be filed within one year after the date of death. The term "periodic monetary benefits" in section 5121(a) excludes one-time lump-sum payments, such as a payment for specially adapted housing or a special home adaptation grant. See Nolan v. Nicholson, 20 Vet. App. 340, 347-48 (2006); (holding that payments for specially adapted housing are not "periodic monetary benefits" because such benefits may be paid only once). The threshold question that must be addressed here, as in any claim for VA benefits, is whether the appellant is a proper claimant for the benefits sought. The critical and dispositive question in the present case is whether the benefits sought are periodic monetary benefits. If not, they may not be awarded as accrued benefits. See 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. As noted above, basic eligibility for assistance in acquiring specially adapted housing and a special home adaptation grant are each not a "periodic monetary benefit;" but are rather one-time payments afforded to veterans who meet certain specified criteria. Therefore, they are not payable as accrued benefits. See 38 U.S.C. § 5121; Nolan, supra. The law is dispositive in these matters. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Appellant's claim for basic eligibility for assistance in acquiring specially adapted housing on an accrued basis must therefore be denied. As the Board has determined that these claims cannot be granted to the appellant as a matter of law, any unmet duties to notify and assist the Appellant as to these claims are moot, and require no further discussion. 38 U.S.C. §§ 3902, 5103(a), 5103A, 5121(a); 38 C.F.R. § 3.159, 3.080; see Nolan v, Nicholson, 20 Vet. App. 340, 347-348 (2006); Sabonis, 6 Vet. App. at 430. The Appellant has also argued through her representative that there was an initial grant of benefits in this case. There is no indication based upon the record that specialty adapted housing benefits were granted. The initial claim was filed in May 2015, and proposals for the construction were enclosed with the initial claim. An evidentiary development letter was sent to the Veteran dated May 20, 2015. Additional documentation was provided by the Appellant received May 28, 2015. The benefits were denied in a rating decision dated June 6, 2015, with the notification letter sent June 9, 2015. There is no indication of a grant of benefits in this time or throughout the remainder of the claims file. Thus, while construction work may have commenced prior to the Veteran's passing, specialty adapted housing benefits were not previously granted by VA. The Board acknowledges that the record documents a July 2015 request for substitution; however, substitution under 38 U.S.C. § 5121A following the death of a claimant, is also limited to claims for "periodic monetary benefits (other than insurance and servicemember's indemnity) under laws administered by the Secretary," or an appeal of such a decision pertaining to periodic monetary benefits. 38 C.F.R. § 3.1010. As discussed above, basic eligibility for specially adapted housing or a special home adaptation grant are not periodic monetary benefits, and thus, the appellant is not eligible to substitute for such a claim as a matter of law. The Board is sympathetic to the Appellant's contentions, particularly given the prolonged time this issue has remained on appeal. Unfortunately, the Board is without authority to grant relief on an equitable basis. See, e.g., 38 U.S.C. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Rather, the Board is bound by the laws and regulations of the VA. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Fisher, 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.