Citation Nr: 1311863 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 10-47 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to accrued benefits. ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1941 to June 1946. He died in September 1980. The Veteran's widow died in January 2010. The appellant is the daughter of the Veteran and the Veteran's widow. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 decision letter of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. It was determined that since the Veteran's widow, as a beneficiary of the Veteran, was paid through the end of the month before the month of death, there is no accrued benefit available for reimbursement on account of last sickness and/or burial. In a November 2010 substantive appeal, via a VA Form 9, the appellant did not specify whether she wanted a Board hearing. In a January 2013 notice letter, the RO informed the appellant, in pertinent part, of where to submit any new request for a Board hearing. In a February 2013 letter, the appellant reported that she has no additional evidence and submits the case for consideration based on the evidence of record. The Board finds there is no hearing request pending at this time. 38 C.F.R. § 20.702 (2012). The Board has not only reviewed the physical claims file but also the file on the "Virtual VA" system to ensure a total review of the evidence. The issue of entitlement to reimbursement of expenses for the Veteran's widow's last sickness and/or burial has been raised by the appellant in the November 2010 VA Form 9, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ) on the merits. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary to decide the appellant's appeal has been obtained. 2. In a December 1980 administrative letter, the RO granted the Veteran's widow entitlement to death pension benefits, effective September 1, 1980. In an August 2001 rating decision, the RO granted the Veteran's widow entitlement to aid and attendance allowance, effective November 15, 2000. 3. The Veteran's widow died in January 2010 and her death benefits were paid through the end of December 2009, which is the last day of the month before her death. CONCLUSION OF LAW The criteria for entitlement to accrued benefits, specifically for the month of January 2010, have not been met. 38 U.S.C.A. § 5112(b)(1) (West 2002); 38 C.F.R. § 3.500(g)(1) (2012). 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. As discussed below, the resolution of the appellant's appeal for accrued benefits turns on the law as applied to the undisputed facts in this claim regarding the date of the Veteran's widow's death. As this case turns on a matter of law, further assistance, such as the further procurement of records, would not assist the appellant with the claim. Consequently, no further notice or development under the VCAA is warranted. See 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); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that, where the law is dispositive, the claim must be denied due to a lack of legal merit). The Board further notes that the appellant was provided the text of pertinent regulations governing the adjudication of this claim in a September 2010 statement of the case (SOC). Analysis In February 2010, the appellant filed a claim for accrued benefits, specifically contending that she is entitled to the death benefits for the month of January 2010 owed to the Veteran's widow as a deceased beneficiary because the death was two days before the end of the month. The appellant reiterated this contention in the April 2010 notice of disagreement, November 2010 Form 9, and May 2011 statement. With regard to an appeal for death of a payee, the effective date of discontinuance of an award of pension for a payee will be the last day of month before death. 38 U.S.C.A. § 5112(b)(1) (West 2002); 38 C.F.R. § 3.500(g)(1) (2012). As indicated, the basic facts are not in dispute. The Veteran served on active duty from February 1941 to June 1946, and died in September 1980. The Veteran's widow began receiving death pension benefits, effective September 1, 1980, and aid and attendance allowance, effective November 15, 2000. The Veteran's widow died in January 2010 and her death benefits were paid through the end of December 2009. Based on a review of the undisputed facts in this case, the Board finds that the discontinuance of the Veteran's widow's award of death benefits was on the last day of the month before her death. The Board acknowledges that the Veteran's widow was alive during the month of January 2010 until the 29th. Nonetheless, since the Veteran's widow died in January 2010, the last day of the month before her death was December 30, 2009. Thus, as a matter of law, the Board finds that the appellant is not entitled to the payment of the Veteran's widow's death benefits for the month of January 2010. See 38 U.S.C.A. § 5112(b)(1); 38 C.F.R. § 3.500(g)(1). The Board further acknowledges the appellant's contention in the November 2010 Form 9 regarding the application of 38 C.F.R. § 3.500(g)(2) for death of a dependent of payee prior to October 1, 1982 and on or after October 1, 1982. The Board finds this regulation is not applicable in this case as the Veteran's widow is to be considered the payee since she was receiving the death benefits, rather than a dependent of a payee. Hence, application of subsection (g)(2) is not appropriate in this case. 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. See 38 U.S.C.A. §§ 503, 7104 (West 2002 & Supp. 2012); 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). Based on the findings discussed above and applying the regulation that provides the proper effective date for discontinuance of an award of pension for a payee, the Board finds the payment of the Veteran's widow's death benefits through the end of December 2009 is correct and the payment of such benefits for the month of January 2010 is precluded by law and regulation. See 38 U.S.C.A. § 5112(b)(1); 38 C.F.R. § 3.500(g)(1). ORDER Entitlement to accrued benefits is denied. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs