Citation Nr: 21010916 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 11-31 864 DATE: February 26, 2021 ORDER Entitlement to reimbursement for private dental expenses incurred in April 2003 is dismissed. FINDING OF FACT The Veteran filed the claim on appeal and died in 2009; accrued benefits on a dental reimbursement claim are not payable as a matter of law. CONCLUSION OF LAW The criteria for dismissal of the claim of entitlement to reimbursement for private dental expenses incurred in April 2003 have been met. 38 U.S.C. §§ 5121(a), 5121A; 38 C.F.R. §§ 3.1000, 3.1010. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1950 to September 1951. This case initially came before the Board of Veterans’ Appeals (Board) on appeal from an October 2003 administrative decision issued by the Department of Veterans Affairs Medical Center (VAMC) in Denver, Colorado, which denied payment for private dental treatment performed in April 2003. Unfortunately, the Veteran died on May [REDACTED], 2009 while his claim was pending; the appellant is his surviving spouse, who sought substitution/accrued benefits on this claim. In July 2014, the matter was remanded by the Board to the Agency of Original Jurisdiction (AOJ). A Supplemental Statement of the Case (SSOC) continued the denial thereafter. Dismissal of this matter is warranted for the following reasons. 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, such as the benefit sought in this case, are not payable to a substitute or on an accrued basis. 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). Analyzing 38 U.S.C. § 5121(a), the key word is periodic. 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. While the Board is sympathetic to the claimant, it is bound by the statutory scheme created by Congress and is not permitted to award payments other than as authorized by Congress. 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 (whether the appellant was granted substitution or otherwise pursued a claim for accrued benefits), there is no relief that can be ultimately afforded by the Board on this claim, and any question of law or fact regarding whether the benefit sought had been appropriately denied below during the Veteran’s life is now moot. 38 U.S.C. § 7104 (providing that the Board decides actual “questions in a matter”); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). It is acknowledged that the last time this matter was before the Board, it commented that the claim may proceed as one for accrued benefits if substitution was denied post-remand. Notably, the prior order did not grant payment of accrued benefits, which would have been prohibited by law. To the extent that any of the prior remand directives were not completed, the Board finds any such error to be harmless. Ultimately, regardless of the outcome of such, there cannot be a resultant lawful payment or relief to the appellant. To do otherwise would simply delay the appellant closure and add to the unfortunate churn and backlog that has plagued the VA and resulted in so many Veterans, such as the deceased, lacking a timely answer on their claims. As payment of the benefit sought is barred as a matter of law, dismissal of the appeal is ordered. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. C. KING, Associate 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.