Citation Nr: 1120919 Decision Date: 05/31/11 Archive Date: 06/06/11 DOCKET NO. 09-26 112 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to special monthly pension payments for April and May 2008, for the purposes of accrued benefits. ATTORNEY FOR THE BOARD V. Chiappetta, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from October 1942 to November 1945. He died in May 2008. The appellant is the Veteran's daughter. This case comes before the Board of Veterans' Appeals (the Board) on appeal of a July 2008 letter decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa, which denied the appellant's claim for accrued benefits. The appellant disagreed with this determination, and perfected an appeal as to this issue. FINDINGS OF FACT 1. In October 2006, the Veteran was awarded special monthly pension (SMP) based on the need for aid and attendance, effective August 10, 2006. 2. The RO stopped payment of SMP on April 1, 2008 based on a finding that the Veteran had not submitted a complete and timely Eligibility Verification Form (EVR). 3. The Veteran passed away in May 2008 without a spouse. Following her father's death, the appellant submitted an application for accrued benefits owed to the Veteran based upon these stopped SMP payments for April and May 2008. 4. At the time of her father's death, the appellant was not a dependent child. CONCLUSION OF LAW The appellant has no legal entitlement to accrued benefits. 38 U.S.C.A. §§ 101, 5121 (West 2002); 38 C.F.R. §§ 3.57, 3.1000 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) outlines the procedural assistance that VA must provide to claimants in certain cases. If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied. There are some claims, however, to which VCAA does not apply. Livesay v. Principi, 15 Vet. App. 165, 178 (2001). Specifically, the VCAA has been held not to apply to claims that, as in this case, turn on statutory interpretation. Smith v. Gober, 14 Vet. App. 227, 231-2 (2000). Thus, because the law as mandated by statute, and not the evidence, is dispositive of this appeal, the VCAA is inapplicable. Mason v. Principi, 16 Vet. App. 129 (2002); see also Sabonis v. Brown, 6 Vet. App. 426, 429- 30 (1994) [where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought]. As such, no further action is required pursuant to the VCAA. Relevant law and regulations The law and regulations governing claims for accrued benefits provide that, upon the death of a veteran, a survivor claiming entitlement may be paid periodic monetary benefits to which the veteran was entitled at the time of death, and which were due and unpaid, based on existing rating decisions or other evidence that was on file when the veteran died. 38 U.S.C.A. § 5121 (West 2002 & Supp. 2010); 38 C.F.R. § 3.1000 (2010); see also Jones v. Brown, 8 Vet. App. 558, 560 (1996). "Evidence in the file at date of death" means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims file on or before the date of death. 38 C.F.R. § 3.1000(d)(4) (2010). Upon the death of a veteran beneficiary, accrued benefits are paid to the first living person in a list as follows: the Veteran's spouse, the veteran's children (in equal shares), or the veteran's dependent parents (in equal shares) or surviving parent. 38 U.S.C.A. § 5121(a)(2) (West 2002 & Supp. 2010); 38 C.F.R. § 3.1000(a)(1) (2010). The term "child" is defined, for purposes of veterans' benefits, as an unmarried person who is a legitimate child who is under the age of 18 years; or who, before reaching the age of 18 years, became permanently incapable of self-support; or who, after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 U.S.C.A. § 101(4) (A) (West 2002); 38 C.F.R. § 3.57 (2010). In order to be eligible for accrued benefits, therefore, the claimant must qualify as a member of one of the statutorily enumerated categories of recipients. See Burris v. Principi, 15 Vet. App. 348, 352-53 (2001) [concluding that 70-year-old appellant was ineligible for accrued benefits because he did not satisfy statutory definition of "child" in 38 U.S.C.A. § 101(4)(A) (West 2002), which excludes anyone over age 23 unless they were "permanently incapable of self-support" before attaining age 18]; Marlow v. West, 12 Vet. App. 548, 551 (1991) [noting that section 5121(a) "limits qualifying survivors to the deceased veteran's spouse, child . . . or dependent parents"]. Subsection (a)(5) provides: "In all other cases, only so much of the accrued benefits may be paid as may be necessary to reimburse the person who bore the expense of last sickness and burial." 38 U.S.C.A. § 5121(a)(5) (West 2002). Analysis The record indicates that the RO awarded the Veteran SMP based on a need for aid and attendance in an October 2006 rating decision. Subsequently, in a March 31, 2008 letter, the RO notified the Veteran that it would stop monthly payments of SMP unless he submitted a completed EVR by April 1, 2008. The Veteran faxed a signed EVR to the RO on March 31, 2008, but apparently left some boxes blank. The RO returned the EVR to the Veteran for completion, but by the time it was delivered, the Veteran had passed away. Because a completed EVR was not in the RO's possession by the requested date, the RO stopped SMP payments for the months of April and May 2008. As noted above, the Veteran died without a spouse. The appellant is one of the Veteran's surviving children. In essence, the appellant argues that she is entitled to accrued benefits for the stopped SMP payments for April and May 2008. She asserts that a timely and complete EVR was in fact submitted on March 31, 2008, and that certain boxes on the form were purposely left blank because the Veteran had "no additional income from the sources left blank." See the appellant's July 2009 VA Form 9. The RO nevertheless has denied the appellant's accrued benefits claim based on a finding that the EVR submitted in March 2008 was incomplete, and because a completed EVR was not submitted until after the Veteran's death. The Board understands the appellant's position, and recognizes the cogency of her arguments. Crucially however, even if the Board were to find that a timely and complete EVR was submitted to VA prior to the Veteran's death, the fact nevertheless remains that the appellant has no legal entitlement to accrued benefits as a matter of law, as she is not an eligible payee under 38 U.S.C.A. § 5121(a) (West 2002). Indeed, the evidence of record shows that although the appellant is the child of the Veteran, she is not a "child" as defined in 38 C.F.R. § 3.1000(d)(2) (2010) and 38 C.F.R. § 3.57 (2010). There is no evidence that the appellant is a dependent child of the Veteran under the age of 18; or before reaching the age of 18 years, became permanently incapable of self-support; or who, after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. See 38 C.F.R. §§ 3.57, 3.1000(d)(2) (2010). Rather, the evidence demonstrates that the appellant is a married woman, over 50 years of age, is no longer a dependent of the Veteran, and was not a dependent at the time of the Veteran's death. See the appellant's June 2008 Application for Accrued Amounts Due a Deceased Beneficiary. Furthermore, there is no evidence to suggest that the appellant was permanently incapable of self support prior to reaching the age of 18 years. The Board notes that it is not considering whether the appellant is entitled to reimbursement for the expenses of the last sickness of the Veteran, as she has not alleged as much, but is only considering whether there is legal entitlement to accrued benefits based on the stopped SMP payments prior to the Veteran's death. The Board accordingly finds that there is no legal basis for entitlement to accrued benefits, in the form of a stopped monthly SMP award for April and May 2008. The appellant is not an eligible payee under 38 U.S.C.A. § 5121(a) (West 2002) and 38 C.F.R. § 3.1000 (2010). In a case where the law is dispositive of the claim, it should be denied because of lack of legal entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board is bound by the law in its decisions and is without authority to grant benefits on the basis of equity. 38 U.S.C.A. §§ 503, 7104 (West 2002 & Supp. 2010); Harvey v. Brown, 6 Vet. App. 416 (1994). Accordingly, the appellant's claim must be denied as a matter of law. ORDER Entitlement to SMP payments for April and May 2008, for the purposes of accrued benefits, is denied. ___________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs