Citation Nr: 1310580	
Decision Date: 04/01/13    Archive Date: 04/11/13

DOCKET NO.  10-48 068	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office 
in Wichita, Kansas


THE ISSUE

Entitlement to payment of surviving spouse's month of the Veteran's death benefit under 38 U.S.C. § 5310(b).


ATTORNEY FOR THE BOARD

W. Yates, Counsel



INTRODUCTION

The Veteran served on active duty from September 1937 to September 1941 and from September 1943 to October 1945.  The Veteran passed away in April 2003;  his surviving spouse passed away in February 2009; and the appellant is their daughter.

This case comes to the Board of Veterans' Appeals (Board) on appeal from a November 2009 administrative decision by the Department of Veterans Affairs (VA) Regional Office and Pension Management Center in St. Paul, Minnesota.  Jurisdiction over the case was subsequently transferred to the Regional Office in Wichita, Kansas.


FINDINGS OF FACT

1.  The Veteran passed away in April 2003; his surviving spouse passed away in February 2009; and the appellant is their daughter.

2.  On February 27, 2009, VA sent correspondence indicating that the Veteran's surviving spouse was entitled to payment for the month of the Veteran's death benefit under 38 U.S.C. § 5310(b) and that a check would soon be sent in the amount of $1,597.00.

3.  Thereafter, the appellant notified VA that the Veteran's surviving spouse (her mother) had passed away in February 2009; the appellant also filed a claim seeking direct payment of this benefit as a non-spouse survivor of the Veteran, or alternatively, payment of this amount as an accrued benefit of the estate of the Veteran's surviving spouse. 
 

CONCLUSION OF LAW

The criteria for entitlement to payment of the surviving spouse's month of the Veteran's death benefit under 38 U.S.C. § 5310(b) have not been met. 38 U.S.C.A. §§ 5107, 5310(b) (West 2002 & Supp. 2012); VAOPGCPREC 1-2009 (January 22, 2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  

They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  

As explained below, the pertinent facts in this case are not in dispute and the law is dispositive.  Consequently, there is no additional evidence that could be obtained to substantiate the claim, and no further action is required to comply with the VCAA or the implementing regulation.  See Manning v. Principi, 16 Vet. App. 534, 542 (2002); VAOPGCPREC 5-2004 (June 23, 2004).

The Veteran passed away in April 2003.  Following his death, the Veteran's surviving spouse began receiving VA benefits.  A subsequent review of these benefit payments, performed by VA Central Office, determined that she had not received the month of the Veteran's death benefit pursuant to 38 U.S.C. § 5310(b).

On February [redacted], 2009, the Veteran's surviving spouse passed away.

On February 27, 2009, VA sent correspondence to the Veteran's surviving spouse (now deceased) indicating that she was entitled to payment for the month of the Veteran's death benefit, and that a check would soon be sent in the amount of $1,597.00.

In December 2009, the appellant notified VA that the Veteran's spouse (her mother) had passed away in February 2009.  The appellant also filed a claim seeking direct payment of this benefit as a non-spouse survivor of the Veteran; or alternatively, she claimed payment as an accrued benefit of the estate of the Veteran's surviving spouse. 

VA General Counsel considered essentially the same set of facts in VAOPGCPREC 1-2009 (January 22, 2009).  According to VA General Counsel, if a Veteran's surviving spouse, entitled to receive the section 5310(b)(1) month of the Veteran's death benefit, dies before receiving the benefit, VA is not required to pay to the deceased surviving spouse's estate the amount of the section 5310(b) benefit the surviving spouse would have received, but for his or her death.  

In reaching this conclusion, General Counsel held that entitlement to the benefit would terminate with the death of the surviving spouse.  As noted by the General Counsel, the statutory terms chosen by Congress in enacting the statute authorizing this benefit, read in the context of the statutory scheme for Veterans' benefits, clearly indicate that the section 5310(b) benefit was intended solely for the surviving spouse of a Veteran.  Cf.  Pelea v. Nicholson, 497 F.3d 1290, 1292 (Fed.Cir. 2007) (providing similar analysis concerning DIC benefits upon the death of a surviving spouse).

As for the appellant's argument seeking entitlement to this benefit as an accrued benefit, VA General Counsel determined that if a surviving spouse entitled to the section 5310(b)(1) benefit dies before receiving the benefit, the section 5310(b)(1) benefit is not subject to the accrued benefits provisions of section 5121 because the section 5310(b)(1) benefit is a one-time payment for the Veteran's month of death and, therefore, cannot be considered "periodic monetary benefits" for purposes of section 5121.

While Board is sympathetic to the appellant's arguments, it is bound by the General Counsel's opinion, as the Chief Legal Officer of VA.  See 38 U.S.C.A. § 7104(c).  Under these circumstances, no legal basis exists for granting this appeal.


ORDER

Entitlement to receive payment of surviving spouse's month of the Veteran's death benefit under 38 U.S.C. § 5310(b) is denied.



____________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs