Citation Nr: 21069079 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 18-32 698 DATE: November 17, 2021 ORDER The claim seeking accrued benefits was timely filed; in that respect, the appeal is granted. The appeal of entitlement to reimbursement of unauthorized medical expenses at a non-VA facility in March 2007 and July 2008 on a substitution basis is dismissed. FINDINGS OF FACT 1. The Veteran died in January 2013. 2. In January 2013, the Regional Office (RO) received the appellant's VA form 21-536, Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child and the RO did not address the Veteran's accrued benefits claim at any time prior to her filing another claim for substitution in January 2017. 3. Prior to the Veteran's death, there was no pending claim of entitlement to reimbursement of unauthorized medical expenses at a non-VA facility in March 2007 and July 2008. 4. Accrued benefits are not payable on this medical reimbursement claim as a matter of law. CONCLUSIONS OF LAW 1. The criteria for filing a timely claim for accrued benefits are met. 38 U.S.C. §§ 5107, 5121; 38 C.F.R. §§ 3.156(b), 3.1000. 2. The criteria for dismissal of entitlement to reimbursement of unauthorized medical expenses at a non-VA facility in March 2007 and July 2008 are met. 38 U.S.C. §§ 5121(a), 7104, 7105; 38 C.F.R. §§ 3.1000, 3.1010, 20.1302. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy with active duty from January 1966 to December 1969. The Veteran died in January 2013. The appellant is the Veteran's surviving spouse. This case is before the Board of Veterans' Appeals (Board) on appeal from a November 2017 Regional Office (RO) decision. In that decision, the RO denied entitlement to accrued benefits. The Veteran's notice of disagreement (NOD) was received in May 2018. The RO issued a statement of the case (SOC) in May 2018. The Veteran's VA Form 9, substantive appeal to the Board, was received in June 2018. 1. Whether the claim seeking accrued benefits was timely filed. Applications for accrued benefits must be filed within one year after the date of death. 38 U.S.C. § 5121(c). A claim for death pension, compensation, or dependency and indemnity compensation, by a surviving spouse is deemed to include claim for any accrued benefits. If an application for accrued benefits is incomplete because the claimant has not furnished information necessary to establish that he or she is within the persons eligible to receive accrued benefits, VA shall notify the claimant that if VA does not receive the required information within one year of the date of the original VA notification of information required, no benefits will be awarded on the basis of that application. 38 C.F.R. § 3.1000(c). The Veteran died in January 2013. The RO received the appellant's VA form 21-536, Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child in January 2013, within one year of the Veteran's death. In a March 2013 rating decision, the RO granted service connection for cause of the Veteran's death and basic eligibility to Dependents' Educational Assistance. In the March 2013 notification letter, the RO informed that the appellant that a decision had not yet been made on the claim for accrued benefits. In October 2017, the appellant submitted another request for substitution of the Veteran. The RO did not make a decision on the claim for accrued benefits or notify the appellant that her application for accrued benefits was incomplete. Accordingly, the appellant timely filed a claim for accrued benefits. 2. Whether reimbursement of unauthorized medical expenses at a non-VA facility in March 2007 and July 2008 on a substitution basis is warranted. Periodic monetary benefits to which a Veteran was entitled at death, either by reason of existing VA ratings or decisions or those based on evidence in the file at date of death, and due and unpaid, are known as "accrued benefits." 38 U.S.C. § 5121 ; 38 C.F.R. § 3.1000 ; see also Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996). For a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits, (ii) the veteran had a claim pending at the time of death, (iii) the veteran would have prevailed on the claim if he had not died; and (iv) the claim for accrued benefits was filed within one year of the veteran's death. 38 U.S.C. § 5121,5101(a); 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). Following timely filing of a proper claim, such benefits will be paid according to a statutorily prescribed order of distribution. Essentially, accrued benefits are paid as follows: (i) to the Veteran's spouse; (ii) his or her children (in equal shares); or (iii) his or her dependent parents (in equal shares) or the surviving parent. 38 U.S.C. § 5121(a)(2); 38 C.F.R. § 3.1000(a)(1). In all other cases, only so much of the accrued benefit may be paid as may be necessary to reimburse the person who bore the expense of last sickness or burial. 38 U.S.C. § 5121(a)(6); 38 C.F.R. § 3.1000(a)(5). In this case, the claims file reflects that there was no pending claim for reimbursement of unauthorized medical expenses at a non-VA facility in March 2007 and July 2008 at the time of the Veteran's death in January 2013. Specifically, the evidence shows that in May 2009, the Veteran provided a copy to the RO of the claims for unauthorized medical expenses at a non-VA facility in March 2007 and July 2008 that he submitted to the VA Medical Center (VAMC). The Veteran sent a copy of an August 2009 letter that he sent to the Birmingham, Alabama VAMC that stated he had submitted a claim for reimbursement with the VAMC in May 2009 and at that time he was verbally told the claim would be denied. He requested reconsideration of claim or to be notified in writing of denial so that he can appeal. In an October 2009 letter to a Veterans Service Officer, the Veteran stated that he had been trying to collect out of pocket exposes for the past three years with no success. He noted that in January 2009 he was referred to the Fee Basis Department at the VAMC in Memphis, Tennessee and Birmingham, Alabama. He noted that he did not hear back from Memphis, Tennessee VAMC; however, the claim filed in Birmingham, Alabama was denied. The Veteran submitted a VA Form 9 to the RO in November 2011 noting that he seeks reimbursement of out of pocket medical exposes incurred prior to his award. This document was not filed in response to a SOC on this issue and it cannot be interpreted as a NOD as it was submitted to an RO and not the VAMC that denied the claim. There is no indication that the Veteran appealed the denial with VAMC in Birmingham, Alabama. Thus, there was no pending appeal at the time the Veteran died in January 2013. Furthermore, even if there was a pending claim for reimbursement of unauthorized medical expenses, a claimant can be found eligible for substitution or accrued benefits only for claims for periodic monetary benefits, and not for claims for personal benefits administered through the Veterans Health Administration. 38 U.S.C. §§ 5121(a), 5121A; 38 C.F.R. §§ 3.1000, 3.1010. Subject to minor exceptions not relevant here, the statute qualifies accrued benefits as those "due and unpaid" "periodic monetary benefits" arising under all "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 the date of death." 38 U.S.C. § 5121(a); see Nolan v. Nicholson, 20 Vet. App. 340, 348 (2006) (explaining that "periodic monetary benefits" include retroactive awards of disability compensation benefits because "even though the actual payment of retroactive benefits is made in a one-time lump-sum payment... the benefits that the claimant had been entitled to receive during his or her lifetime would have been paid monthly"). However, nonrecurring reimbursements are not payable to a substitute. See Pappalardo v. Brown, 6 Vet. App. 63 (1993) (one-time payment for assistance for specially adapted housing does not qualify as "periodic monetary benefit" and is not payable as accrued benefit after veteran's death). Unless a payment is one that a veteran would have received in regular intervals during his or her lifetime, a substituted claimant may not recover that benefit. An award of medical expense reimbursement is not a "periodic monetary benefit," but rather a one-time payment afforded to veterans under 38 U.S.C. § 1725 or 38 U.S.C. § 1728. Cf. Pappalardo v. Brown, 6 Vet. App. 63, 65 (1993) (a one-time payment for assistance for specially adapted housing does not qualify as a "periodic monetary benefit" for purposes of 38 C.F.R. § 5121, and therefore, is not payable as an accrued benefit); Gillis v. West, 11 Vet. App. 441 (1998) (holding that automobile purchase assistance is not an accrued benefit as a matter of law even when entitlement to the benefit was established prior to the veteran's death). Therefore, the claim of entitlement to medical expense reimbursement cannot, as a matter of law, be granted on the basis of an accrued benefit, and thus, the appellant is also ineligible to substitute for the Veteran with respect to this issue because only potential accrued benefit beneficiaries are eligible for substitution. The Board is bound by the statutory scheme created by Congress and is not permitted to award payments other than as authorized by Congress. See Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992); citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990) ("[N]o equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress."). Because of the limitation under the law on payment, there is no relief that can be afforded on this claim, and any question of law or fact regarding whether the benefit sought had been appropriately denied during the Veteran's life with respect to the issue of entitlement to reimbursement of unauthorized medical expenses is now moot. See 38 U.S.C. § 7104 (providing that the Board decides actual "questions in a matter"); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, the appeal must be dismissed. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Berry, 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.