Citation Nr: 1322321 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 10-08 186A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to accrued benefits. 2. Entitlement to death pension in the amount of $1,268.00 for the month of the Veteran's death, or a portion of this amount, in recompense for home health care services provided from January 1, 2008 through February 22, 2008. ATTORNEY FOR THE BOARD Rutkin, Joshua M. INTRODUCTION The Veteran served on active duty from January 1943 to December 1945. He passed away in February 2008. The appellant claims as his son. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2009 and June 2009 determinations of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied entitlement to accrued benefits and also denied entitlement to death pension benefits in the amount of $1,268.00. Although the RO characterized this claim as involving one issue, namely entitlement to "accrued benefits and [the Veteran's] month of death check [sic] in the amount of $1,628.00," the legal requirements for each of these benefits is distinct. Therefore, the Board has split the claim into two issues for the sake of clarity: (1) entitlement to accrued benefits and (2) entitlement to death pension benefits, as reflected on the cover sheet. Each issue will be discussed in turn below. FINDINGS OF FACT 1. The Veteran did not have any accrued benefits as of his death. 2. The appellant is not entitled by law to death pension benefits for the amount of pension or compensation which would have been payable for the month in which the Veteran died had his death not occurred, in this case $1,268.00, as such benefits are only payable to a surviving spouse. CONCLUSIONS OF LAW 1. The criteria for entitlement to accrued benefits have not been satisfied. 38 U.S.C.A. §§ 1110, 1131, 1310, 5107, 5121 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312, 3.1000 (2012). 2. The criteria for entitlement to death pension benefits in the amount of $1,268.00, or a portion thereof, have not been met. 38 U.S.C.A. § 5112 (West 2002); 38 C.F.R. §§ 3.20, 3.500, 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a surviving son of the deceased Veteran. He contends that as the Veteran's primary caretaker, he is entitled to accrued benefits, to include all or a portion of the $1,268.00 of pension benefits which would have been owed to the Veteran for the month of February 2008 had he not died. In this regard, the appellant has provided credible evidence in the form of several statements by himself, his siblings, and the Veteran's former physician that the appellant was the Veteran's primary caretaker from July 1993 until his death in February 2008. Such care included bathing the Veteran, feeding him, administering medication, housing him, and providing transportation. The appellant also included an "invoice" in the amount of $1,268.00 for these services for the period from January 1, 2008 to February 22, 2008. With regard to entitlement to accrued benefits, under 38 C.F.R. § 3.1000, certain eligible individuals, including the Veteran's surviving children, may be paid periodic monetary benefits authorized by VA law to which a payee was entitled-and which are due and unpaid-at the time of his or her death under existing ratings or based on evidence in the file or constructively of record at the time of his or her death. See 38 U.S.C.A. § 5121(a). Pertinent to this claim, in certain cases a portion of such accrued benefits may be paid as necessary to reimburse the person who bore the expense of last sickness or burial. 38 C.F.R. § 3.1000(a)(5). In Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), the Federal Circuit held that, for an eligible person to be entitled to accrued benefits, "the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision." See Zevalkink v. Brown, 102 F.3d 1236 (Fed Cir. 1996) (holding that a consequence of the derivative nature of an accrued benefits claim is that, without the veteran having a claim pending at time of death, the eligible survivor (in this case a surviving spouse) has no claim upon which to derive his or her own application). The term "pending claim" means an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c) (2012). A recent change to VA law also allows a person eligible to receive accrued benefits to instead substitute himself or herself as the claimant for the purpose of processing any claims pending at the time of the Veteran's death to completion. See 38 U.S.C.A. § 5121A (2012); VBA Fast Letter 211 (10-30), August 10, 2010. The record shows that at the time of the Veteran's death in February 2008, he was in receipt of nonservice-connected special monthly pension benefits based on the need for aid and attendance, which were granted in a February 2006 rating decision. A November 2007 letter to the Veteran reflects that such benefits were payable in the amount of $1,268.00 effective December 2007. Service connection had also been established for a duodenal ulcer, rated as 10 percent disabling from October 26, 1949. The Veteran did not have any pending claims at his death. Because the Veteran did not have any pending claims when he died, entitlement to accrued benefits may not be granted as a matter of law, notwithstanding the fact that the appellant had been the Veteran's primary caretaker for many years, including during his last illness. See 38 C.F.R. § 31000; Jones, 136 F.3d at 1299. By the same token, there were no pending claims with respect to which the appellant could substitute himself as a claimant. See 38 U.S.C.A. § 5121A. With regard to the Veteran's existing pension and compensation benefits, 38 U.S.C.A. § 5112(b)(1) provides, in pertinent part, that the effective date of a discontinuance of compensation, dependency and indemnity compensation (DIC), or pension will be the last day of the month before the death occurs. See 38 C.F.R. § 3.500(g). Because the Veteran died in February 2008, as shown by a Certificate of Death of record, the discontinuance of his benefits was effective January 2008. See id. The appellant does not argue, and there is no other indication, that such benefits have not been paid. The only exception to the rule that a discontinuance of pension and compensation benefits is effective the last day of the month before the death occurs-as discussed in the preceding paragraph-is that where a Veteran dies on or after October 1, 1982, as is the case here, the surviving spouse may be paid death pension or DIC benefits for the month in which the Veteran died at a rate equal to the amount of compensation or pension which would have been payable to the veteran for that month had death not occurred, unless the surviving spouse is otherwise entitled to a greater amount of death pension or DIC benefits. 38 C.F.R. § 3.20. Otherwise, no payment of death pension or DIC benefits may be made for the month in which the Veteran died. Id. In other words, only a surviving spouse is eligible for VA benefits payable for the month in which the Veteran died. Applying the above provisions of § 3.20 of the regulations to this case, the Veteran was entitled to monthly pension in the amount of $1,268.00, which was discontinued the month prior to his death. (The record shows that a check issued in error in the amount of $1,268.00 for the month of February 2008 was properly returned to VA by the appellant.) The only person potentially eligible to receive the $1,268.00 which would have been due for February 2008-the month of the Veteran's death-would be his surviving spouse. As the appellant is not the Veteran's surviving spouse, he is not eligible by law for any portion of this amount, notwithstanding the fact that he had been the Veteran's primary caretaker. See id. While the Board appreciates the appellant's arguments in support of his claim, and in particular his commendable care of the Veteran for many years, the Board 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 such a result might be equitable. See 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994); see also Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (stating that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided by Congress") (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990). Accordingly, the appellant's claim for accrued benefits and death pension benefits must be denied. As the law, and not the facts, determines the outcome of this claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Under the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), VA has duties to notify and assist claimants in substantiating claims for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). However, when the law, and not the evidence, is dispositive of the claim, as is the case here, the VCAA does not apply. See Mason v. Principi, 16 Vet. App. 129, 132 (2002) (stating that "because the law as mandated by statute, and not the evidence, is dispositive of this claim, the VCAA is not applicable," and citing to the legislative history of its enactment, in which Congress "observed that it is important to balance the duty to assist 'against the futility of requiring VA to develop claims where there is no reasonable possibility that the assistance would substantiate the claim'") (quoting 146 CONG. REC. S9212 (daily ed. Sept. 25, 2000) (statement of Sen. Rockefeller). Moreover, a January 2010 Statement of the Case (SOC) and February 2013 supplemental SOC (SSOC) informed the appellant of the law applicable to his claim. Although the SOC and SSOC did not equate to VCAA-compliant notice, a reasonable person would have known based on the information provided what was required to support the claim. See Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005) (holding that lack of prejudicial harm with regard to VCAA notice errors may be established when a reasonable person would have known what was required to substantiate the claim based on the information provided), rev'd on other grounds; Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, any notice error was harmless. See Shinseki v. Sanders 556 U.S. 396, 407, 410 (2009) (holding that the "rule of prejudicial error" requires a case-by-case determination as to whether the error in question was harmless); see also 38 U.S.C.A. § 7261(b)(2) (West 2002) (providing that the Court must take due account of the rule of prejudicial error). Moreover, as already discussed, there is no possibility that any development would alter the outcome of this claim, which turns on the applicable law and not the facts. Thus, VCAA-compliant notice was not required and lack of such notice was harmless. See Mason, 16 Vet. App. at 132. ORDER Entitlement to accrued benefits is denied. Entitlement to death pension in the amount of $1,268.00 for the month of the Veteran's death, or a portion of this amount, in recompense for home health care services provided from January 1, 2008 through February 22, 2008 is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs