Citation Nr: 1119961	
Decision Date: 05/23/11    Archive Date: 06/06/11

DOCKET NO.  08-09 852A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island

THE ISSUE

Entitlement to additional accrued benefits.

(The issue of whether there was clear and unmistakable error (CUE) in an October 1, 2004 decision of the Board of Veterans' Appeals (Board) that denied the Veteran's claim for an effective date for an award of service connection for bipolar disorder with post-traumatic stress disorder, prior to September 17, 1998, for the purposes of accrued benefits, will be considered in a separate decision.)

REPRESENTATION

Appellant represented by: Disabled American Veterans


ATTORNEY FOR THE BOARD

James R. Siegel, Counsel

INTRODUCTION

The Veteran served on active duty from September 1961 to September 1964.  He died in October 2005.  The appellant is his widow.

By letter dated July 2009, the Department of Veterans Affairs (VA) Regional Office (RO), of Providence, Rhode Island, informed the appellant her claim for accrued benefits was denied.  She filed a timely appeal to the Board of Veterans' Appeals (Board).

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

There were no remaining claims pending at the time of the Veteran's death in October 2005.  Special Monthly Compensation for the purposes of accrued benefits was awarded by prior Board decision.


CONCLUSION OF LAW

The criteria for an award of additional accrued benefits have not been met.  38 U.S.C.A. § 5121(a) (West 2002); 38 C.F.R. § 3.1000 (2010).



REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act

The Veterans Claims Assistance Act (VCAA) redefined VA's duty to assist the appellant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010).

The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain.  38 C.F.R. § 3.159(b) (2010).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule).  In any event, where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson.

In a January 2006 letter, the RO provided notice to the Veteran regarding what information and evidence are needed to substantiate a claim for accrued benefits.  The Board notes the appellant's comments in the numerous statements she has submitted to the VA clearly indicate she understands the requirements for a claim for accrued benefits.  Accordingly, any shortcoming in compliance with the VCAA does not result in any prejudice to the appellant.  Bernard v. Brown, 4 Vet. App. 383 (1993).
 
The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant.  Specifically, the information and evidence that has been associated with the claims file includes the service treatment records, private and VA medical records, and a statement from a relative of the appellant. 

As discussed above, the appellant was notified and made aware of the evidence needed to substantiate this claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence.  The appellant has been an active participant in the claims process by submitting evidence and providing argument.  Thus, she has been provided with a meaningful opportunity to participate in the claims process and has done so.  Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant.  Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits.  See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Analysis 

The Board has reviewed all the evidence in the appellant's claims file.  Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail.  Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The law applicable to accrued benefits provides that certain individuals, including the Veteran's surviving spouse, may be paid periodic monetary benefits (due and unpaid) to which the Veteran was entitled at the time of his death under existing ratings or based on evidence in the file or constructively of record at the time of his death.  38 U.S.C.A. § 5121(a) (West 2002); 38 C.F.R. § 3.1000.  A claim for such benefits must be filed within one year of the Veteran's death.  38 C.F.R. § 3.1000(a), (c).

In Jones v. West, the Federal Circuit concluded that, "for a surviving spouse to be entitled to accrued benefits, the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision."  Jones, 136 F.3d 1296, 1299 (Fed. Cir. 1998).  The Federal Circuit noted that "a consequence of the derivative nature of the surviving spouse's entitlement to a veteran's accrued benefits claim is that, without the veteran having a claim pending at time of death, the surviving spouse has no claim upon which to derive his or her own application."  Id. at 1300.

The term "pending claim" means an application, formal or informal, which has not been finally adjudicated.  38 C.F.R. § 3.160(c) (2010).  The term "finally adjudicated claim" means an application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is earlier.  38 C.F.R. § 3.160(d) (2010); see also 38 C.F.R. §§ 20.1103, 20.1104 (2010).

The Board notes that the statute regarding accrued benefits claims was amended by the Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, on October 10, 2008.  Section 212 created a new statute, 38 U.S.C.A. § 5121A, which provided that if a claimant died while a claim or appeal for any benefit under a law administered by the Secretary was pending, a living person who would be eligible to receive accrued benefits due to the claimant under § 5121(a) of this title may, not later than one year after the date of the death of the claimant, request to be substituted as the claimant for the purposes of processing the claim to completion.  The new statute allows a person who could be considered an accrued benefits claimant to substitute for a deceased claimant to continue adjudication of the deceased claimant's claim.  The provisions of the new statute apply with respect to the claim of any claimant who dies on or after October 10, 2008.  See Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008); see also Veterans Benefits Administration Fast Letter, Overview of Changes Made by Public Law 110-389, The Veterans' Benefits Improvement Act (Mar. 3, 2009).  The change does not affect cases involving deaths prior to that time, such as this case.

The appellant seeks an award of accrued benefits.  Initially, the Board notes that its August 2007 decision granted her claim for accrued benefits for special monthly compensation based on the need for regular aid and attendance.  

It is not entirely clear what additional claims the appellant is pursuing.  A prerequisite for an award of accrued benefits is that there was a claim pending at the time of the Veteran's death.  In a letter received in April 2008, the appellant referred to a claim for compensation benefits under the provisions of 38 U.S.C.A. § 1151 (West 2002) for a femur fracture, as well as an award of special monthly compensation dating back to 1995.  During a hearing before a Veterans Law Judge in May 2007, which addressed other matters, she mentioned claims for service connection for arthritis of the right hip and a back disability.  

By decision dated October 2004, the Board denied the Veteran's claim for compensation benefits pursuant to 38 U.S.C.A. § 1151 for residuals of hip and neck fractures.  Thus, this claim had been adjudicated and there was no claim pending upon the Veteran's death. 

The Board also points out that to the extent the appellant sought to raise claims at the May 2007 hearing, even had such claims been pending when the Veteran died, since her claim for these accrued benefits was not filed within one year of the Veteran's death, it is not a valid claim.  

The Board acknowledges that by rating decision dated July 2005, the RO denied claims for a specially adapted housing or a home adaptation grant, or a certificate of eligibility for assistance in acquiring an automobile or other conveyance, and adaptive equipment, or adaptive equipment only.  The appellant has also referred to claims for a clothing allowance.  Inasmuch as these benefits do not constitute periodic monthly benefits, there is no basis for accrued benefits for such claims.  

Since the Veteran did not have any additional claims pending at the time of his death, the appellant is not entitled to any additional accrued benefits beyond those previously awarded.  


ORDER

Entitlement to additional accrued benefits is denied.


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs