Citation Nr: 1312895 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 10-45 418 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to payment of accrued benefits claimed as due, but unpaid to the Veteran's surviving spouse. 2. Entitlement to substitution as claimant due to the death of the Veteran's surviving spouse. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from February 1942 to October 1945. He died in April 1993. His surviving spouse died in January 2009. The appellant is the daughter of the Veteran and his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In January 2009, the appellant submitted a claim for death benefits, including accrued benefits, which, per VA policy, was interpreted as a request for substitution. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in April 2011. A transcript of the hearing is associated with the claims file. In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA. The Board has reviewed both the paper and electronic claims files in rendering this decision. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. At the time of the Veteran's death, the appellant was over the age of twenty-three; there is no evidence that she became permanently incapable of self-support prior to attaining age eighteen. 2. The appellant does not contend, and the evidence does not indicate, that she bore any expense for the Veteran's or his surviving spouse's last sickness and burial. CONCLUSIONS OF LAW 1. The appellant has no legal entitlement to accrued benefits. 38 U.S.C.A. §§ 101, 5121 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.57, 3.1000 (2012). 2. As a matter of law, the criteria for substitution of appellant for the Veteran in any claim pending as of the date of his death have not been met. 38 U.S.C.A. § 5121, 5121A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.57, 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) outlines the procedural assistance that VA must provide to claimants in certain cases. If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied. There are some claims, however, to which VCAA does not apply. Livesay v. Principi, 15 Vet. App. 165, 178 (2001). Specifically, the VCAA has been held not to apply to claims that, as in this case, turn on statutory interpretation. Smith v. Gober, 14 Vet. App. 227, 231-2 (2000). Thus, because the law as mandated by statute, and not the evidence, is dispositive of this appeal, the VCAA is inapplicable. Mason v. Principi, 16 Vet. App. 129 (2002); see also Sabonis v. Brown, 6 Vet. App. 426, 429- 30 (1994) [where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought]. As such, no further action is required pursuant to the VCAA. Legal Criteria As noted above, the surviving spouse died in January 2009. That same month, the appellant filed a claim for accrued benefits, and later indicated that she wished to be substituted as the claimant to continue her mother's appeal pursuant to the newly-enacted Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating a new 38 U.S.C.A. § 5121A allowing substitution in the case of the death of a claimant who dies on or after October 10, 2008). Under 38 U.S.C.A. § 5121A, an eligible person may request to substitute as claimant for a veteran following his or her death for the purpose of processing any pending claims to completion. Substitution differs from a traditional "accrued benefits" claim in that additional evidence and argument may be added to the claims file following the death of the veteran. Cf. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. A request for substitution must be filed not later than one year after the date of a veteran's death and, as provided for in this new provision, a person eligible for substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title . . .." Id.; 38 U.S.C.A. § 5121A. On the other hand, the law and regulations governing claims for accrued benefits provide that, upon the death of a veteran, a survivor claiming entitlement may be paid periodic monetary benefits to which the veteran was entitled at the time of death, and which were due and unpaid, based on existing rating decisions or other evidence that was on file when the veteran died. 38 U.S.C.A. § 5121 (West 2002 & Supp. 2012); 38 C.F.R. § 3.1000 (2012); see also Jones v. Brown, 8 Vet. App. 558, 560 (1996). "Evidence in the file at date of death" means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims file on or before the date of death. 38 C.F.R. § 3.1000(d)(4) (2012). Upon the death of a veteran beneficiary, accrued benefits are paid to the first living person in a list as follows: the Veteran's spouse, the veteran's children (in equal shares), or the veteran's dependent parents (in equal shares) or surviving parent. 38 U.S.C.A. § 5121(a)(2) (West 2002 & Supp. 2012); 38 C.F.R. § 3.1000(a)(1) (2012). The term "child" is defined, for purposes of veterans' benefits, as an unmarried person who is a legitimate child who is under the age of 18 years; or who, before reaching the age of 18 years, became permanently incapable of self-support; or who, 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) (A) (West 2002); 38 C.F.R. § 3.57 (2012). In order to be eligible for accrued benefits, therefore, the claimant must qualify as a member of one of the statutorily enumerated categories of recipients. See Burris v. Principi, 15 Vet. App. 348, 352-53 (2001) [concluding that 70-year-old appellant was ineligible for accrued benefits because he did not satisfy statutory definition of "child" in 38 U.S.C.A. § 101(4)(A) (West 2002), which excludes anyone over age 23 unless they were "permanently incapable of self-support" before attaining age 18]; Marlow v. West, 12 Vet. App. 548, 551 (1991) [noting that section 5121(a) "limits qualifying survivors to the deceased veteran's spouse, child . . . or dependent parents"]. Subsection (a)(5) provides: "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.A. § 5121(a)(5) (West 2002). Factual Background and Analysis The appellant contends that she should be entitled to accrued benefits for both the benefits that the Veteran and his surviving spouse (the appellant's mother) were in receipt of at the time of their respective deaths. The appellant also contends that VA miscalculated the Veteran's income and failed to appropriately deduct medical expenses when determining the Veteran's entitlement to nonservice-connected pension benefits. The appellant also requested that she be substituted as the claimant in the cause of death claim pending at the time of her mother's death. The record reflects that the Veteran died in April 1993 from being hit by a car. At the time of his death, the Veteran was in receipt of nonservice connected pension benefits. In November 2001, the Veteran's surviving spouse filed for nonservice-connected death pension benefits, entitlement to accrued benefits, and entitlement to Dependency and Indemnity Compensation (DIC) benefits. In a June 2004 rating decision, the surviving spouse was awarded aid and attendance allowance, and the following month her award letter indicated that she was entitled to pension with aid and attendance allowance. In September 2004, service connection for the cause of the Veteran's death was denied. The surviving spouse filed her claim to reopen service connection for the cause of the Veteran's death in December 2006. In August 2007, the RO declined to reopen the claim as no new and material evidence was received. She filed a notice of disagreement in January 2008. In January 2009, the Veteran's surviving spouse died. The appellant filed her claim for accrued benefits in January 2009. The RO denied her entitlement to accrued benefits in a September 2009 decision. In her April 2011 hearing, she contended that both the Veteran and his surviving spouse were owed monies by VA. She argued that VA had improperly determined their respective incomes and failed to properly discount payments for medical care. Further, the appellant argued that the Veteran's death by being hit by a car was service related. The Board understands the appellant's position, and is sympathetic to her arguments. Crucially however, even if the Board were to find the Veteran had a disability related to service that substantially contributed to his death, and/or income calculations were in error for both the Veteran and his spouse for pension purposes, the fact remains that the appellant has no legal entitlement to accrued benefits as a matter of law. She is not an eligible payee under 38 U.S.C.A. § 5121(a) (West 2002). Indeed, the evidence of record shows that although the appellant is the daughter of the Veteran and his recently deceased surviving spouse, she is not a "child" as defined in 38 C.F.R. § 3.1000(d)(2) (2012) and 38 C.F.R. § 3.57 (2012). There is no evidence that the appellant is a dependent child of the Veteran under the age of 18; or before reaching the age of 18 years, became permanently incapable of self-support; or who, 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. See 38 C.F.R. §§ 3.57, 3.1000(d)(2) (2012). Rather, the evidence demonstrates that the appellant is over 55 years of age, is no longer a dependent of the Veteran, and was not a dependent at the time of the deaths of the Veteran's or his surviving spouse. Furthermore, there is no evidence to suggest that the appellant was permanently incapable of self support prior to reaching the age of 18 years. Moreover, she is not eligible to be substituted as claimant for the surviving spouse in any claim pending as of the date of her death. See 38 U.S.C.A. § 5121A. The Board notes that it is not considering whether the appellant is entitled to reimbursement for the expenses of the last sickness of the Veteran, as she has not alleged as much, but is only considering whether there is legal entitlement to accrued benefits based on the Veteran's surviving spouse's claim of service connection for the cause of his death and any outstanding pension benefits that may have been payable to the Veteran and/or his surviving spouse. The Board accordingly finds that there is no legal basis for entitlement to accrued benefits or entitlement to substitution as a claimant. The appellant is not an eligible payee under 38 U.S.C.A. § 5121(a) (West 2002) and 38 C.F.R. § 3.1000 (2012). In a case where the law is dispositive of the claim, it should be denied because of lack of legal entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Although the Board is highly sympathetic, it is bound by the applicable law and regulations as written. 38 U.S.C.A. § 7104(c) (West 2002); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994) (holding that the Board is without authority to grant benefits simply because it might perceive the result to be equitable). Accordingly, the appellant's claims must be denied as a matter of law. ORDER Entitlement to substitution as claimant due to the death of the Veteran is denied. Entitlement to accrued benefits is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs