Citation Nr: 22016533 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 05-14 185A DATE: March 22, 2022 ORDER The appeal concerning entitlement to payment on a substitute basis for non-VA medical services provided to the Veteran between March 4, 2004 and March 5, 2004 is dismissed. FINDING OF FACT Payment or reimbursement of non-VA medical expenses is not a periodic monetary benefit subject to payment as accrued or substituted benefits. CONCLUSION OF LAW The criteria for payment for non-VA medical services provided to the Veteran between March 4, 2004 and March 5, 2004 have not been met as a matter of law. 38 U.S.C. §§ 1725, 1728, 5121, 5121A, 7104, 7105; 38 C.F.R. §§ 3.100, 3.1000, 3.1010, 20.105, 20.1302. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from November 1974 to November 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 decision by a Department of Veterans Affairs Medical Center (VAMC) that declined payment for non-VA medical care provided to the Veteran at the Santa Rosa Memorial Hospital from March 4, 2004 to March 5, 2004. The Board previously remanded this matter in January 2008. The Board was previously notified that the Veteran had passed away in April 2021. In May 2021, the Board issued a dismissal of the Veteran's appeal, upon finding that due to the death of the Veteran, the Board lacked jurisdiction to adjudicate the merits of his appeal. The appellant in the present appeal is the Veteran's surviving spouse. The appellant in this case seeks payment by VA for an episode of care for her Veteran husband had between March 4, 2004 to March 5, 2004. The Veteran had previously been granted payment for one day of hospitalization, from March 2, 2004 to March 3, 2004. Until now, the question of whether the claim should be granted focused on whether or not the Veteran's condition had stabilized as of March 4, 2004 such that he could have been safely transferred to a VA facility. The underlying question remains unresolved. However, regardless of any findings that the Board could make as to that question, payment of this benefit is barred as a matter of law. 38 U.S.C. § 5121A, the statute providing for a survivor to be substituted as the claimant for the purposes of processing a claim to completion, states the following: (a) Substitution- (1) If a claimant dies while a claim for any benefit under a law administered by the Secretary, or an appeal of a decision with respect to such a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title may, not later than one year after the date of the death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion. . . (b) Limitation- Those who are eligible to make a claim under this section shall be determined in accordance with section 5121 of this title. 38 U.S.C. § 5121 (payment of certain accrued benefits upon death of a beneficiary) provides, in pertinent part, as follows: (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: (1) Upon the death of a person receiving an apportioned share of benefits payable to a veteran, all or any part of such benefits to the veteran or to any other dependent or dependents of the veteran, as may be determined by the Secretary. (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. If a claimant's application is incomplete at the time it is originally submitted, the Secretary shall notify the claimant of the evidence necessary to complete the application. If such evidence is not received within one year from the date of such notification, no accrued benefits may be paid. 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. 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. The critical (and dispositive) question in these matters 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. 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 claimant. 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). Essentially, 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. In a 2007 opinion, VA's General Counsel discussed the extent to which an appeal with respect to payment or reimbursement of unauthorized medical expenses under the provisions of 38 U.S.C. § 1728 survives the death of a veteran. VAOPGCCONCL 1-2007 (Oct. 29, 2007). The General Counsel held, in pertinent part, that if the veteran is the appellant, and he or she dies during the pendency of an appeal to the Board, the appeal should be dismissed; however, if the appellant is instead the care provider or a person other than the veteran who paid for the services, consideration of the appeal should proceed. The General Counsel also held that the decedent's estate did not have legal standing to pursue a pending appeal, and that no substitutions or new claims should be permitted. Although VA General Counsel's opinion is non-precedential, the Board finds its reasoning persuasive. Furthermore, inasmuch as the provisions of 38 U.S.C. §§ 1725(a)(2) and 1728(b), and their implementing regulations, 38 C.F.R. §§ 17.123 and 17.1004(a), are substantially identical in their description of the parties eligible to seek payment or recovery of unauthorized medical expenses, the Board finds that the reasoning in the opinion extends to the provisions of 38 U.S.C. § 1725 as well. 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. 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 sympathetic to the appellant's situation. However, 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."). The eligibility requirements for payment of benefits on a substitute or accrued basis are prescribed by Congress, and the Board is not free to disregard them. 38 U.S.C. § 7104(c); 38 C.F.R. § 20.105. 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. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Solomon, 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.