Citation Nr: 0801739	
Decision Date: 01/16/08    Archive Date: 01/29/08

DOCKET NO.  05-28 565	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, 
Tennessee


THE ISSUE

Entitlement to accrued benefits based on unreimbursed medical 
expenses incurred prior to veteran's death.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Sarah E. Abraham, Associate Counsel



INTRODUCTION

The veteran had active military service from January 1941 to 
October 1945.  He died on August [redacted], 2004.  The appellant is 
the veteran's daughter.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal of an October 2004 administrative decision 
by the Department of Veterans Affairs (VA) Regional Office 
(RO) in Nashville, Tennessee.


FINDINGS OF FACT

1.  The veteran died on August [redacted], 2004; the appellant filed 
her claim for accrued benefits on August 31, 2004.

2.  At the time of the veteran's death, he did not have a 
claim pending with VA.


CONCLUSION OF LAW

The criteria for entitlement to accrued benefits have not 
been met. 38 U.S.C.A § 5121 (West 2002); 38 C.F.R. § 3.1000 
(2007). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans' Claims Assistance Act (VCAA), codified in part 
at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 
C.F.R § 3.159, amended VA's duties to notify and to assist a 
claimant in developing information and evidence necessary to 
substantiate a claim.

When the interpretation of a statute is dispositive of the 
issue on appeal, neither the duty to notify nor the duty to 
assist provisions of the VCAA are implicated.  Dela Cruz v. 
Principi, 15 Vet. App. 143, 149 (2001).  Because the 
application of the law to the facts is dispositive of this 
appeal, no discussion of VA's duties to notify and assist is 
necessary.  See Mason v. Principi, 16 Vet. App. 129 (2002).  

Accrued benefits are periodic monetary benefits under VA laws 
to which the veteran was entitled at death under existing 
ratings or decisions, or those based on evidence in file at 
the date of death.  38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000.  
Upon the death of a veteran, accrued benefits are paid first 
to any living spouse of the deceased veteran, then to any 
living children, then to the veteran's dependent parents or 
surviving parent.  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.A. § 5121(a); 38 C.F.R. § 3.1000(a).  In order for a 
claimant to be entitled to accrued benefits, the veteran must 
have had a claim pending at the time of death.  Jones v. 
West, 136 F.3d 1296 (Fed. Cir. 1998).

The veteran died on August [redacted], 2004, and his daughter, the 
appellant, on August 31, 2004, filed a claim for 
reimbursement from accrued amounts due a deceased 
beneficiary.  She submitted copies of receipts of medical 
expenses the veteran incurred during 2004 prior to his death.  
The appellant is arguing that she believed the veteran was 
not allowed to make any claims until after December 31, 2004, 
and that the veteran would live until January 2005, in time 
to submit his claim.  Thus, relying on this belief, she paid 
his bills, and purchased medical supplies on his behalf.  

The evidence does not show that the appellant is eligible to 
receive accrued benefits under 38 C.F.R. § 3.1000.  At the 
time of his death, the veteran had been receiving monthly 
pension checks from VA.  Accrued benefits are only payable 
after the veteran's death if his claim and supporting 
evidence was of record at the time of his death.  As the 
veteran had no claim pending at the time of his death on 
August [redacted], 2004, and as he was not entitled to additional 
periodic benefits based on an existing rating or decision or 
on evidence in the file at the date of death, the threshold 
legal criteria for establishing entitlement to accrued 
benefits have not been met.  38 U.S.C.A. § 5121(a); 38 C.F.R. 
§ 3.1000(a).

Although the appellant filed a claim after the veteran's 
death, and although the claim for accrued benefits under 38 
U.S.C.A. § 5121 is a separate claim, it is at the same time 
derivative of the veteran's claim, in that the claimant's 
entitlement is based upon the veteran's entitlement.  See 
Zevalkink v. Brown, 6 Vet. App. 483, 489-90 (1994); aff'd, 
102 F.3d 1236 (Fed. Cir. 1996); cert. denied, 117 S. Ct. 2478 
(1997) (holding that "the substance of the survivor's claim 
is purely derivative from any benefit to which the veteran 
might have been 'entitled' at his death and gives the 
survivor the right to stand in the shoes of the veteran and 
pursue his claim after his death).

Accordingly, the law as applied to the undisputed facts is 
dispositive, and the claim fails because of the lack of legal 
entitlement under the law.  Sabonis v. Brown, 6 Vet. App. 
426, 429-30 (1994).


ORDER

Entitlement to accrued benefits is denied.



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs