Citation Nr: 1310593	
Decision Date: 04/01/13    Archive Date: 04/11/13

DOCKET NO.  10-49 728	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to accrued benefits based on unreimbursed medical expenses of the Veteran.  


ATTORNEY FOR THE BOARD

Kristi L. Gunn, Counsel


INTRODUCTION

The Veteran served on active duty from May 1945 to April 1946.  The Veteran died in April 2008, and the appellant is the Veteran's son.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center (VAROIC) in Philadelphia, Pennsylvania.  The San Juan, the Commonwealth of Puerto Rico, RO currently has jurisdiction of the claim.  

The Board has reviewed the contents of the Veteran's Virtual VA file and found no medical or other evidence pertinent to this appeal that is not in his claims file.


FINDING OF FACT

The Veteran died in April 2008, more than one year prior to the date of receipt of the August 2009 claim for accrued benefits based on unreimbursed medical expenses.  


CONCLUSION OF LAW

The claim for payment of accrued benefits lacks legal merit.  38 U.S.C.A. §§ 5107, 5121, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.1000 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify & Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012).  
In some cases, the VCAA need not be considered because the issue presented is solely one of statutory interpretation and/or 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); 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 date of filing of the claim for accrued benefits is not in dispute; instead, resolution of the claim is wholly 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 to the claim.  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.  

II.  Decision  

Upon the death of a payee, certain parties are entitled to payment of any due and unpaid periodic monthly benefits authorized under laws administered by VA, to which such payee was entitled at his or her death under existing ratings or decisions or those based on evidence in the file at date of death.  See 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000(a).  

Upon the death of a Veteran, accrued benefits may be paid to his or her spouse, children, or dependent parents.  Upon the death of a surviving spouse or remarried surviving spouse, accrued benefits may be paid to a Veteran's children.  Upon the death of a child, benefits may be paid to the surviving children of the Veteran entitled to death pension, compensation, or dependency and indemnity compensation.  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 or burial.  38 C.F.R. § 3.1000(a).  

In the instant case, the Veteran died in April 2008.  The current claim was received in August 2009, more than one year after the death of the Veteran.  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).  Therefore, the application for accrued benefits does not comply with 38 C.F.R. § 3.1000(c), and the Board finds that the appellant's claim for accrued benefits must be denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 


ORDER

Entitlement to accrued benefits based on unreimbursed medical expenses of the Veteran is denied.  



____________________________________________
KELLI A. KORDICH
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs