Citation Nr: 1304834 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 10-02 991 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to payment of accrued benefits. ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from February 1943 to April 1946. He died in August 1993. Thereafter, the Veteran's spouse (beneficiary) was awarded dependency and indemnity compensation (DIC) benefits under 38 U.S.C.A. § 1318. The Veteran's spouse died in January 2008. The Appellant is the daughter of the Veteran's spouse. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an August 2008 decisional letters of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa which determined that the Appellant was not entitled to accrued benefits in the amount of $1595.00. The Appellant appealed that decision and is seeking accrued benefits for reimbursement of the expense of last sickness and burial. FINDINGS OF FACT 1. The Veteran died in August 1993. The Veteran's spouse was awarded entitlement to DIC benefits, effective from August 1993; she died in January 2008. 3. The Appellant does not satisfy the statutory definition of a "child" of the Veteran to be eligible for the payment of accrued benefits. 4. On February 1, 2008, a payment in the amount of $1595.00 was electronically deposited into the deceased beneficiary's checking account. 5. In February 2008, the Appellant returned to VA the full amount of the $1595.00 payment which was issued to the deceased beneficiary. 6. The February 2008 payment was made for benefits for the month "after" the beneficiary's death. 7. At the time of the beneficiary's death, there remained no periodic monetary benefits which she was entitled to, that were unpaid. 8. The Appellant bore the burial expenses of the Veteran's spouse, in the amount of $948.00. 9. The Appellant identified nursing home costs in the amount of $183.00 and funeral preparations in the amount of $95.31 for reimbursement; however, these costs were not born by the Appellant as the amounts were identified as "unpaid." 10. Because there were no periodic monetary benefits to which the beneficiary was entitled to at the time of her death, there are no accrued benefits from which reimbursement can be issued. CONCLUSION OF LAW Accrued benefits are not payable to the Appellant. 38 U.S.C.A. §§ 101(4)(A), 5121 (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.57(a), 3.500(g), 3.1000, 3.1003 (2012); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). In a February 2008 letter, the RO provided notice to the Appellant regarding entitlement to benefits for the month in which death occurred. The application for accrued amounts due to a deceased beneficiary (VA Form 21-601), requested that the Appellant list expenses of last sickness and burial. Instructions for VA Form 21-601, received by the Appellant, further informed her that accrued benefits may be payable as reimbursement for last illness and burial expenses. The Appellant submitted the VA Form 21-601 in March 2008, which included claimed expenses of last sickness and burial. With regard the payment of accrued benefits under 38 U.S.C.A. § 5121, VCAA notice is not required in this case because the issue presented is solely one of statutory interpretation and the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). See also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law). As discussed below, the pertinent facts regarding the amount of "accrued benefits" (periodic monetary benefits to which the beneficiary was entitled to at the time of her death) are not in dispute; instead, resolution of the claim is dependent on interpretation of the applicable laws and regulations pertaining to entitlement to accrued benefits. The VCAA is therefore inapplicable and need not be considered with regard the issue of entitlement to receipt of accrued benefits under 38 U.S.C.A. § 5121. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also VAOPGCPREC 5-2004. Significantly, the Appellant has not identified, and the record does not otherwise indicate, any additional evidence necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duties to notify and assist the Appellant in the development of the claim. Smith, 14 Vet. App. 227; Dela Cruz, 15 Vet. App. 143; see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Law and Analysis 38 U.S.C. § 5121 provides for payment of certain accrued benefits upon death of a beneficiary. Periodic monetary benefits under laws administered by the Secretary to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death and due and unpaid, shall, upon the death of a surviving spouse or remarried surviving spouse, be paid to the children of the deceased veteran. 38 U.S.C. § 5121(a)(3), (West 2002 and Supp. 2011); 38 C.F.R. § 3.1000(a)(2) (2012). 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. § 5121(a)(6); 38 C.F.R. § 3.1000(a)(5). Applications for accrued benefits must be filed within one year after the date of death. See 38 U.S.C.A. § 5121(c) (West 2002); 38 C.F.R. § 3.1000(c). For purposes of 38 U.S.C.A. § 5121 , the term "child," as defined for the purposes of establishing dependency status, means an unmarried person who is a legitimate child; a child legally adopted before the age of 18 years; a stepchild who acquired that status before the age of 18 years and who is a member of the Veteran's household at the time of the Veteran's death; or an illegitimate child. In addition, the child must be someone who: (1) is under the age of 18 years; (2) before reaching the age of 18 years became permanently incapable of self-support; or (3) 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) ; 38 C.F.R. §§ 3.57(a) , 3.1000(d)(2); Burris v. Principi, 15 Vet. App. 348, 352-53 (2001); Nolan v. Nicholson 20 Vet. App. 340 (2006). Where the payee of a check for benefits has died prior to negotiating the check, the check shall be returned and canceled. 38 C.F.R. § 3.1003 (2012). The amount represented by the returned check, or any amount recovered following improper negotiation of the check, shall be payable to the living person or persons in the order of precedence set forth for accrued benefits, except that the total amount payable shall not include any payment for the month in which the payee died (see § 3.500(g)) and payments to persons who bore the payee's last expenses are limited to the amount necessary to reimburse those expenses. 38 C.F.R. § 3.1003(a). 38 C.F.R. § 3.500(g) specifies that discontinuance of an award upon the death of the payee will be the last day of the month before death. The Veteran died in August 1993. The Veteran's spouse was awarded entitlement to DIC benefits, effective from August 1993. A certificate of death shows that the Veteran's spouse died in January 2008. The Appellant filed a claim for accrued benefits on March 2008, within one year of the death of the beneficiary. The Board finds that the Appellant is eligible to receive benefits under 38 U.S.C.A. § 5121(a). In this case, the Appellant does not an eligible survivor under 38 U.S.C.A. § 5121 because she does not meet the statutory definition of "child" under 38 U.S.C.A. § 101(4)(A) to be eligible for the payment of accrued benefits. A March 2008 claim for accrued benefits shows that the Appellant identified herself as the daughter of the beneficiary, but not a daughter of the Veteran. She reported that her date of birth was in June 1950. The Appellant does not contend that she is unmarried, under the age of 18, that she became permanently incapable of self-support before the age of 18, or that she is under the age of 23 and is pursuing a course of instruction at an educational institution. Accordingly, the Appellant does not satisfy statutory definition of "child" in 38 U.S.C.A. § 101(4)(A). Additionally, the evidence of record indicates that the Appellant is not a child of the deceased Veteran as required for eligibility under 38 U.S.C. § 5121(a)(3). The Appellant was not identified in the record as one of the Veteran's three children during his lifetime, a birth certificate for the Appellant is not of record, and an April 1981 VA examination shows that the Veteran reported that his spouse had eleven children from prior marriages. For these reasons, the Board finds that the Appellant has not established that she is a "child" of the Veteran, and there is no legal basis for the payment of accrued benefits under the provisions of 38 U.S.C.A. § 5121(a). The Board has also considered whether reimbursement of expenses paid for the Veteran's last sickness or burial is warranted under 38 U.S.C.A. § 5121(b). The Board finds that the Appellant has standing based upon the fact that she bore the burial expenses for the deceased beneficiary. The Appellant is entitled to receive only so much of the accrued benefits available as is necessary to reimburse her for the expenses of last sickness and burial that she incurred on the beneficiary's behalf. 38 C.F.R. § 3.1000(a)(5). The Board finds that at the time of the beneficiary's death, there remained no periodic monetary benefits which she was entitled to which remained unpaid. A review of the beneficiary's DIC award history shows that monthly payments issued on first day of each month beginning in the month of the Veteran's death. A review of the award payment history made via direct deposit for the year preceding death; however, shows that that some payments were made a few days prior to the first of the month for that month's benefits. Monthly benefits were received via direct deposit into the beneficiary's checking account on February 1, 2007, March 1, 2007, March 30, 2007, May1, 2007, June 1, 2007, June 29, 2007, August 1, 2007, August 31, 2007, October 1, 2007, November 1, 2007, November 30, 2007, December 31, 2007, and February 1, 2008. While the RO determined that the February 1, 2008 payment represented benefits paid for the month of January 2008, the Board finds, upon reviewing the beneficiary's payment history, that the December 31, 2007 payment actually represented benefits paid for the month of January 2008, the month of the beneficiary's death. The Board will not address the question of whether the deceased beneficiary was entitled to the payment issued on December 31, 2007, as it will not affect the outcome of the Appellant's appeal for accrued benefits. On February 1, 2008, a payment in the amount of $1595.00 was electronically deposited into the deceased beneficiary's checking account. In February 2008, the Appellant returned to VA the full amount of the $1595.00 payment which was issued to the deceased beneficiary. While the Appellant properly returned the full amount of the February 2008 electronic payment; the Board finds that the February 1, 2008 payment represents benefits for the month of February 2008, the month "after" death. Under the provisions of 38 C.F.R. §§ 3.1003 and 3.500(g), the beneficiary was not entitled to payment of periodic monetary benefits for the month in which she died (in this case, January 2008). The Board finds, therefore, that, there were no periodic monetary benefits which the beneficiary was entitled to which remained unpaid at the time of her death. The RO discontinued the beneficiary's award upon her death, and the last electronic payment received by the beneficiary prior to death was on December 31, 2007. A payment was not made in January 2008, the month of the beneficiary's death. Because the February 1, 2008 electronic payment was made for benefits for the month "after" the beneficiary's death, the Board finds that no entitlement to those benefits exists, and they do not represent accrued benefits in this case. See 38 C.F.R. §§ 3.500(g), 3.1003. The Appellant has provided evidence, in the form of invoices and receipts, showing that she bore the burial expenses of the Veteran's spouse in the amount of $948.00. The Appellant also identified nursing home costs in the amount of $183.00 and funeral preparations in the amount of $95.31 for reimbursement; however, the Board finds that these costs were not born by the Appellant as the amounts were identified by her as "unpaid" on the claim for accrued benefits and on the invoices submitted. Thus, the Board finds that the Appellant bore the expense of last sickness and burial in the amount of $928.00. While the Appellant would be entitled to reimbursement for that amount from any accrued benefits available; because there were no periodic monetary benefits to which the deceased beneficiary was entitled to at the time of her death, there are no accrued benefits from which reimbursement can be issued. See 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. Action by the Board and VA is bound by the applicable law and regulations as written. See 38 U.S.C.A. § 7104(c) (West 2002). Because are no accrued benefits (periodic monetary benefits to which the beneficiary was entitled to at the time of death) available in this case, payment of such benefits to the Appellant for reimbursement is not possible under 38 U.S.C.A. § 5121. Accordingly, the claim lacks legal merit. See Cacalda v. Brown, 9 Vet. App. 261, 265 (1996) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). For these reasons, the Board finds that the Appellant is not eligible for the payment of accrued benefits under 38 U.S.C.A. § 5121. ORDER Entitlement to accrued benefits is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs