Citation Nr: 1236635 Decision Date: 10/23/12 Archive Date: 11/05/12 DOCKET NO. 10-13 668A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to payment of accrued benefits in excess of $601.00 (U.S. Dollars). ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran served on active duty from July 1917 to March 1918, and he died in January 1950. Thereafter, the Veteran's widow was awarded nonservice-connected death pension benefits. The Veteran's widow died in August 2006. The appellant is the niece of the Veteran's widow, and she is representing herself, seeking additional accrued benefits that she believes were owed to her to cover the funeral and burial expenses of the deceased Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. FINDINGS OF FACT 1. The Veteran died in January 1950. 2. The Veteran's widow was awarded entitlement to death pension benefits, effective from October 1, 1967; she died in August 2006. 3. At the time of the widow's death, she had in her possession two uncashed pension checks dated in July and August 2006, each in the amount of $601.00 (U.S. Dollars). 4. The appellant, the widow's niece, filed a claim for accrued benefits owed to the deceased beneficiary in May 2008. 5. The appellant does not satisfy statutory definition of "child" under 38 U.S.C.A. § 101(4)(A) to be eligible for the payment of accrued benefits. 6. The appellant bore the burial expenses of the Veteran's widow. 7. The appellant returned to the RO the two $601.00 checks that the widow had in her possession at the time of her death. 8. In September 2009, VA issued to the appellant accrued benefits in the amount of $601.00. 9. The burial expenses incurred by the appellant far exceed the total amount of accrued benefits due to the deceased widow. CONCLUSION OF LAW Accrued death pension benefits in an amount greater than $601.00 (U.S. Dollars) are not payable to the appellant. 38 U.S.C.A. § 5121 (West 2002 & Supp. 2011); 38 C.F.R. § 3.1000 (2011); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). However, the United States Court of Appeals for Veterans Claims (Court) has held that the statutory and regulatory provisions pertaining to VA's duty to notify and assist do not apply to a claim if resolution of that claim is based on statutory interpretation, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). In the instant case, the facts are not in dispute. Resolution of the appeal is wholly dependent on interpretation of the law and regulations pertaining to the payment of accrued benefits. Because no reasonable possibility exists that further notice or assistance would aid in substantiating this claim, any deficiencies of VCAA notice or assistance are rendered moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). The Board further notes that the appellant was provided with the text of pertinent regulations governing the adjudication of this claim in a February 2010 statement of the case. II. Background As indicated, the basic facts are not in dispute. The Veteran served on active duty from July 1917 to April 1918, and died in January 1950. The Veteran's widow began receiving nonservice-connected death pension benefits, effective October 1, 1967. The Veteran's widow died in August 2006. The appellant, the widow's niece, filed an application for Accrued Amounts Due to a Deceased Beneficiary in December 2006. In August 2007 correspondence, the RO denied the appellant's claim because she denied incurring any of the widow's last sickness, or burial expenses. In the denial letter, the RO also advised the appellant to return any VA checks payable to the widow. Thereafter, the appellant returned to the RO two checks, dated in July and August 2006, each in the amount of $601.00 (US Dollars). In May 2008, the appellant essentially sought to reopen her claim, indicating that she paid out-of-pocket the funeral and medical insurance expenses of the Veteran's widow. Thereafter, the appellant submitted itemized bills for the widow's funeral and burial. In a March 2009 letter, the appellant advised the RO that the amount paid out-of-pocket for the widow's funeral, burial, and medical expenses, in addition to the widow's household expenses, totaled 5,877.95 Euro. See appellant's December 2010 substantive appeal. In an August 2009 letter, the RO informed the appellant that she was entitled to accrued benefits in the amount of $601.00, but no more. See also, VA Form 21-8947, dated in August 2009. In September 2009, the RO issued to the appellant accrued benefits in the amount of $601.00. See February 2010 statement of the case. III. Entitlement to Accrued Benefits Upon the death of a payee of VA benefits, periodic monetary benefits to which he or she was entitled to, on the basis of evidence in the file at the date of death (accrued benefits) 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). Persons eligible for such payments (which are paid upon the death of the Veteran to the first living person listed) are: (i) the spouse; (ii) his or her children in equal shares; (iii) and his or her dependent parents or the surviving parent. 38 C.F.R. § 3.1000(a)(1). They are also payable upon the death of a surviving spouse or remarried surviving spouse, to the Veteran's children. 38 C.F.R. § 3.1000(a)(2) (2011). Accrued benefits may also be paid as may be deemed necessary to reimburse the person who bore the expenses of the last sickness and burial. 38 U.S.C.A. § 5121(a)(6) (West 2002); 38 C.F.R. § 3.1000(a)(5) (2011). Payments to persons who bore the expense of last sickness or burial shall be limited to the amount necessary to reimburse such persons for the expenses of last sickness and/or burial. 38 C.F.R. § 3.1000(a). The amount payable shall not include any payment for the month in which the payee died. 38 C.F.R. § 3.1003(a) (2011). See also, 38 C.F.R. § 3.500(g) (2011). Here, the appellant is not the Veteran's spouse, child, or dependent parent. Accordingly, she is not entitled to accrued benefits pursuant to 38 C.F.R. § 3.1000(a)(1). However, the appellant has standing in this case based upon the fact that she bore the burial expenses of the Veteran's widow. The appellant is entitled to receive only so much of the accrued benefits available as is necessary to reimburse her for the burial expenses that she incurred on the widow's behalf. 38 C.F.R. § 3.1000(a)(5). At the time of her death in August 2006, the Veteran's widow had in her possession two pension checks from VA, each in the amount of $601.00. The record also reflects that the appellant returned the July and August 2006 checks to VA as directed her to do. Notably, the amount payable does not include any payment for the month in which the payee dies. 38 C.F.R. § 3.1003(a). As such, the Veteran's widow was entitled to the July 2006 pension check, but not to the August 2006 pension check because she died in that month. The record reflects further that VA sent to the appellant a $601.00 reimbursement check in September 2009, and that amount represents the total amount of accrued benefits to which she is entitled. The appellant's claim for additional money appears to rest upon a misunderstanding as to her own eligibility to receive additional accrued benefits. Although the appellant has reported incurring burial expenses in excess of $601.00, the Veteran's widow was entitled to receive VA benefits only in the amount of $601.00. In other words, the appellant is only entitled to receive $601.00 of accrued benefits towards the burial expenses that she incurred on behalf of the Veteran's widow, even though she has submitted proof of expenditures far in excess of that amount. In summary, the Board finds that the appellant has already been paid the maximum amount of accrued benefits payable to her in this instance. Only $601.00 was available to reimburse the appellant for her expenditures on behalf of the Veteran's widow. VA is bound by the applicable law and regulations as written. See 38 U.S.C.A. § 7104(c) (West 2002). In cases such as this, where the law and not the evidence is dispositive, the claim should be denied because of the lack of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Accordingly, the appellant's claim of entitlement to additional accrued benefits is denied. ORDER The appeal is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs