Citation Nr: 1216014 Decision Date: 05/03/12 Archive Date: 05/10/12 DOCKET NO. 10-18 165A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to accrued benefits. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD N. Kroes, Counsel INTRODUCTION A copy of the Veteran's Certification of Military Service reflects that he served on active duty from February 1942 to October 1947. According to a copy of his death certificate he died in August 1973. The appellant is his daughter. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied the appellant's claim for accrued benefits. This claim was remanded by the Board in March 2011 so that the appellant could be afforded her requested Board hearing. In August 2011, the appellant testified at a Board hearing before the undersigned. A transcript of this hearing is associated with the claims file. The claim has now been returned to the Board for further appellate action. During the appellant's hearing, she submitted additional evidence with a waiver of initial RO consideration of the evidence. See 38 C.F.R. § 20.1304 (2011). She subsequently submitted additional evidence without a waiver of initial RO consideration. However, as none of this evidence is pertinent to the claim, remand for RO consideration of this evidence is not necessary. See id. at (c). Evidence is not pertinent if it does not relate to or have a bearing on the appellate issue. Id. The evidence submitted without waiver includes duplicative evidence, as well as copies of stock certificates, the appellant's claim for lost savings bonds, printouts that appear to summarize stocks, checks written from the Veteran's estate for payment of taxes and funeral expenses, information from the Social Security Death Index, a letter from the Internal Revenue Service indicating that there was no record for a Social Security number related to the tax period of December 31, 2008, letters from state treasury departments relating to unclaimed property, a form regarding VA life insurance (the appellant is not listed as a beneficiary), and additional statements from the appellant. None of these documents have any bearing on the appellant's claim for accrued benefits or her assertion that VA is holding money in trust for her. FINDINGS OF FACT 1. The Veteran died in August 1973. 2. The appellant first filed a claim for accrued benefits in December 2008. CONCLUSION OF LAW The criteria for entitlement to payment of accrued benefits to the appellant have not been met. 38 U.S.C.A. § 5121(a) (West 2002); 38 C.F.R. § 3.1000(c) (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) redefined VA's duty to notify and assist a claimant 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) (2011). In this case, the VCAA is not applicable because the issue presented involves a claim that cannot be substantiated as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) (holding that VA is not required to provide notice of the information and evidence necessary to substantiate a claim or assistance where there is no reasonable possibility that such aid could substantiate the claim because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). Upon the death of a veteran, periodic monetary benefits (other than insurance and servicemen's indemnity) to which he was entitled to on the basis of evidence in the file at the date of death (accrued benefits), and due and unpaid, may be paid to certain parties. 38 U.S.C.A. § 5121(a) (West 2002); 38 C.F.R. § 3.1000(a) (2011). Applications for accrued benefits must be filed within one year after the date of death. 38 U.S.C.A. § 5121(c) (West 2002). Under the facts and controlling law, the claim must be denied due to a lack of legal merit. Sabonis, 6 Vet. App. at 430. The Veteran died in 1973 and the appellant did not file a claim for accrued benefits until 2008, more than 30 years after the Veteran's death. The appellant does not argue that a timely claim for accrued benefits was filed. As the claim for accrued benefits was not filed within one year after the Veteran's death, it must be denied. See 38 U.S.C.A. § 5121(c). The Board recognizes that the appellant asserts that VA is holding funds in trust for her, left by the Veteran. In support of this assertion, she has submitted numerous records. However, none of these records show that VA is holding any funds in trust for the appellant nor do VA records. A "Final Payment-Work Sheet" from 1947 details funds owed the Veteran at his separation from the Army. These funds were owed to the Veteran by the Army and not VA. This record does not establish that VA is holding funds in trust for the appellant. A May 1951 letter from VA to the appellant's mother indicates that she was the appellant's legal custodian at that time. It indicates that the appellant was a beneficiary. While the appellant, as the minor daughter of a disabled veteran, may have received some benefits from VA during the Veteran's lifetime, this does not establish that VA is holding funds in trust for her. A photocopy of the Veteran's Petition for Custody (of the appellant) in December 1951 notes that the Veteran supported his daughter by allotment from the pension he received from VA because he was seriously wounded in Europe during the late fighting in World War II. In addition, it indicates that a trust fund for the appellant was created in April 1947 by the Veteran, his former wife, and his former father-in-law. According to the petition, at the time of the petition the funds in the trust had been exhausted. There is no mention of funds being held by VA in trust for the appellant. VA records reflect that the appellant was receiving VA educational assistance shortly before the Veteran's death. This does not establish that VA is holding funds in trust for the appellant. The Veteran died in August 1973. Records reflect that the appellant was the executrix of his estate. A copy of the Veteran's will indicates that upon his death a trust was to be set up with the Pennsylvania Company For Banking and Trusts, with the appellant as the beneficiary. VA is not mentioned in the will. It is noted that as executrix of the Veteran's will, if the above was in fact the controlling will at the time of the Veteran's death, the appellant would likely have been involved in the creation of the indicated trust. These records do not establish that VA is holding funds in trust for the appellant. In an October 2008 letter to Capital One Bank, the appellant asked to claim a Trust Fund that was purportedly left to her by her father. She indicated that the trust was started with a different organization and that after mergers the trust was with Capital One Bank. In a November 2008 response letter, Capital One Bank stated that "[a]fter a thorough research of our files and after confirmation from the Veterans Administration, this account is held out of the VA Pennsylvania regional office." A fax from Capital One Bank to VA the day before this letter was written indicates that the funds were not held at Capital One and the bank asked VA to advise where the funds were being held. The record does not contain any report of contact between VA and Capital One Bank where VA suggests that it is holding funds in trust for the appellant. These records do not establish that VA is holding funds in trust for the appellant. The Board also notes that the appellant has submitted a Department of Defense Form 214 (DD 214) detailing the service of a veteran with the same name as her father, the Veteran in this case. This DD 214 appears to be for a veteran other than the Veteran as the date of birth and service number differs from the Veteran's. As explained above, there is no evidence that VA is currently holding funds in trust for the appellant. ORDER Entitlement to accrued benefits is denied. ____________________________________________ Nathaniel J. Doan Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs