Citation Nr: 1312931	
Decision Date: 04/18/13    Archive Date: 05/02/13

DOCKET NO.  10-40 574	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to accrued benefits. 


ATTORNEY FOR THE BOARD

Sara Schinnerer, Counsel


INTRODUCTION

The Veteran had active service from November 1965 to November 1967.  He died in November 2005; the appellant is the Veteran's surviving daughter.  

This case comes before the Board of Veterans Appeals (Board) on appeal from a December 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.  

The record before the Board consists of the paper claims files and an electronic file known as Virtual VA.  


FINDINGS OF FACT

1.  The Veteran died in November 2005.

2.  The appellant filed a VA Form 21-534 for accrued benefits in July 2009.

3.  The appellant did not file a claim for accrued benefits within one year of the Veteran's death.


CONCLUSION OF LAW

The criteria for entitlement to accrued benefits have not been met.  38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Notice and Assistance

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  See also Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  

In the present case, such notice is not required for the appellant's claim of entitlement to accrued benefits because the claim cannot be substantiated as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994);  VAOPGCPREC 5-2004 (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit).

Accrued Benefits 

Upon the death of a veteran, certain persons shall be paid periodic monetary benefits to which the veteran was entitled at the time of death under existing ratings or decisions, or those based on evidence in the file at date of death, and due and unpaid.  See 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000 (a) (2012).  There is no basis for an accrued benefits claim, unless the veteran from whom the accrued benefits  claim derives had a claim for VA benefits pending at the time of death.  See Jones v. West, 136 F.3d 1296, 1300 (Fed. Cir. 1998). 

Further, applications for accrued benefits must be filed within one year of   death.  38 C.F.R. § 3.1000(c). 

In the present case, the Veteran died in November 2005.  The appellant, however, did not file a claim for accrued benefits until July 2009.  In this regard, the Board acknowledges that the Veteran's mother submitted a claim for burial benefits in January 2006; however, such claim did not reference or otherwise assert entitlement to accrued benefits.  Moreover, the appellant in the present case is the surviving daughter of the Veteran, thus, a claim of entitlement to accrued benefits is not inferred from the aforementioned January 2006 claim, as such claim was not initiated by the appellant.  Accordingly, the Board finds that the appellant's claim for accrued benefits was not timely filed, and entitlement to accrued benefits are not warranted.   

As the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law.  See Sabonis, 6 Vet. App. 426, 430 (1994).  Where the law, rather than the facts, is dispositive, the benefit of the doubt provisions are not for application.  38 U.S.C.A. § 5107(b).


ORDER

Entitlement to accrued benefits is denied.  




____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs