Citation Nr: 1217023 Decision Date: 05/11/12 Archive Date: 05/24/12 DOCKET NO. 10-04 440 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to accrued benefits for pension purposes. ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active service from July 1943 to March 1946. The Veteran died in July 1976. In April 2002 the Veteran's widow applied for pension benefits but was denied such benefits in July 2002 as her income exceeded the maximum annual death pension limit at that time. Thereafter, in October 2008 widow's daughter, the appellant in this matter, submitted another application for pension benefits on the widow's behalf. The widow died in February 2009. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied the appellant's claim for accrued benefits. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The Veteran died in July 1976 and his widow died in February 2009. 2. On the date of her death, she had a pending claim for VA death pension benefits. 3. After the widow's death, the appellant filed a claim seeking accrued benefits in the form of VA pension benefits for the period from October 2008 (the date of the claim for pension benefits) until February 2009 (the date of the widow's death). 4. Evidence regarding the establishment of a relationship between the Veteran and his widow was reported prior to the widow's death. 5. The appellant is not a "child" for VA purposes and is thus ineligible for accrued benefits. CONCLUSION OF LAW The criteria for entitlement to accrued benefits for pension purposes are not met. 38 U.S.C.A. §§ 101, 5121 (West 2002); 38 C.F.R. § 3.1000 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran died in July 1976. Upon his death the Veteran's widow submitted a claim for burial benefits and the claim was granted in August 1976. In April 2002 the Veteran's widow applied for pension benefits but was denied such benefits in July 2002 as her income exceeded the maximum annual death pension limit at that time. Thereafter, in October 2008 the appellant, the widow's daughter, submitted another application for pension benefits on behalf of the widow as the widow was suffering from Alzheimer's disease. Significantly, in a November 2008 VA Form 21-534 Application for Dependency and Indemnity the appellant wrote that both the Veteran and the widow had previously been married and divorced and married each other in July 1959. This marriage, according to the appellant, ended upon the Veteran's death in July 1976. The appellant also wrote that the widow had never married since the Veteran's death. In support of this application the appellant submitted a copy of the July 1959 marriage license for the Veteran and his widow. Notably, the appellant noted that the Veteran married his first wife in 1958 and divorced in 1959. The appellant also noted that information pertaining to date of marriage and date of divorce for the Veteran was "unknown." In February 2009 the RO sent the widow a letter asking that she complete VA Form 21-686c, Declaration of Status of Dependents, to provide marital history for both her and her spouse. Specifically, it was indicated that she must provide a marital history for both herself and her spouse, specifically the RO needed to know the dates (month and year) and places (city and state) of all previous marriages for both herself and the Veteran. The widow died in February 2009 and immediately thereafter the appellant submitted a claim for accrued benefits. Specifically, the appellant sought assistance with the money paid by placing her mother in an assisted living facility beginning in October 2008 due to her Alzheimer's disease. By correspondence dated in May 2009 the RO informed the appellant that because the RO did not have adequate information in the claims file at the time of the widow's death which established a relationship between the Veteran and the widow, there were no accrued benefits. Legal Criteria Periodic monetary benefits (other than insurance and servicemen's indemnity) to which an individual was entitled at death under existing ratings or decisions and under laws administered by the VA Secretary, or those based on evidence in the file at date of death and due and unpaid will, upon the death of such individual, be paid to the surviving spouse or other appropriate party. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. Applications for accrued benefits must be filed within one year after the date of death. 38 U.S.C.A. § 5121(c); 38 C.F.R. § 3.1000(c). Following timely filing of a proper claim, such benefits will be paid according to a statutorily prescribed order of distribution. Under 38 U.S.C.A. § 5121, periodic monetary benefits 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 (hereinafter referred to as "accrued benefits") and due and unpaid, shall, on 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; (B) The veteran's children (in equal shares); (C) The veteran's dependent parents (in equal shares); (3) Upon the death of a surviving spouse (widow) or remarried surviving spouse, to the children of the deceased veteran; (4) Upon the death of a child, to the surviving children of the veteran who are entitled to death compensation, dependency and indemnity compensation, or death pension; (5) Upon the death of a child claiming benefits under Chapter 18, to the surviving parents; and (6) 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); 38 C.F.R. § 3.1000(a). A claimant qualifies as a "child" if he or she is born of the veteran. 38 U.S.C.A. § 101(4)(A). Nevertheless, he or she must also be unmarried, and (i) under the age of 18; or (ii) who, before attaining the age of 18 became permanently incapable of self-support; or (iii) who, after attaining the age of 18 and until completion of education or training (but not after attaining the age of 23), is pursuing a course of instruction at an approved education institution. 38 U.S.C.A. § 101(4)(A); 38 C.F.R. §§ 3.57, 3.356, 3.1000(d)(2). Analysis Initially, the Board notes that the appellant did submit evidence regarding the establishment of a relationship between the Veteran and his widow prior to the widow's death. Specifically, in a November 2008 VA Form 21-534 Application for Dependency and Indemnity the appellant wrote that both the Veteran and the widow had previously been married and divorced and married each other in July 1959. This marriage, according to the appellant, ended upon the Veteran's death in July 1976. The appellant also wrote that the widow had never married since the Veteran's death. In support of this application the appellant submitted a copy of the July 1959 marriage license for the Veteran and his widow. Notably, the appellant noted that the Veteran married his first wife in 1958 and divorced in 1959. The appellant also noted that information pertaining to date of marriage and date of divorce for the Veteran was "unknown." Also, the RO had previously made the determination that the appellant's mother was the Veteran's widow in August 1976 when the widow was awarded burial benefits and again in July 2002 when the RO adjudicated the widow's first claim for pension. However, the appellant does not fit into any of the categories listed under 38 U.S.C.A. § 5121(a)(2) through (5), or equivalently under 38 C.F.R. § 3.1000(a)(1) through (4). The evidence of record shows that while the appellant may be the adult daughter of the Veteran and his widow, she is not a "child" as defined in 38 C.F.R. § 3.1000(d)(2) and 38 C.F.R. § 3.57. Thus, the evidence of record shows that the appellant is not an eligible payee under 38 U.S.C.A. § 5121(a) and 38 C.F.R. § 3.1000(a), as she is not the Veteran's spouse, "child" (as defined by regulation), or dependent parent. Under 38 U.S.C.A. § 5121(a), the only category under which the appellant may fall is that of 38 U.S.C.A. § 5121(a)(6), or equivalently 38 C.F.R. § 3.1000(a)(5); that is, "all other cases." Under that provision, the operative rule is that only so much of the accrued benefits may be paid as may be necessary to reimburse the person who bore the expense of the last sickness and burial. 38 U.S.C.A. § 5121 (a)(6); 38 C.F.R. § 3.1000(a)(5). Initially, the Board notes that the widow was not awarded pension prior to her death. Furthermore, even if the widow was in receipt of pension benefits prior to her death, under the law governing reimbursement to the appellant from accrued amounts due a deceased beneficiary, the appellant is not entitled to payment, as there is no evidence that the appellant herself bore any expenses of the widow's last sickness or burial. The Board recognizes the appellant's considerable sacrifices in time and money as a result of her mother's illness and resolution of her estate. Unfortunately, the widow passed away before her claim for death pension was adjudicated and a determination of a proper fiduciary was made by VA. The law is dispositive of the issue on appeal, and the appellant's claim must be denied because of the absence of legal merit or entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Based on the undisputed facts of this case, the appellant is not entitled to accrued benefits. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. Although the Board is sympathetic toward the appellant, it is bound by the law, and this decision is dictated by the relevant statutes and regulations. The Board is without authority to grant benefits simply because it might perceive the result to be equitable. 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board further observes that "no 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." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). Notice and Assistance As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). As the resolution of the appellant's appeal for entitlement to accrued benefits is dependent on the interpretation of the law and regulations pertaining to claims for VA benefits, no further development under the VCAA or previously existing law is warranted. Mason v. Principi, 16 Vet. App. 129, 132 (2002); see generally Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law); see also VAOPGCPREC 2-04; 69 Fed. Reg. 25180 (2004). Even so, the Board notes that the appellant was notified by the RO of evidence needed in order for VA to pay accrued benefits in correspondence dated in September 2009. ORDER The appeal for accrued benefits for pension purposes is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs