Citation Nr: 1333980	
Decision Date: 10/28/13    Archive Date: 11/06/13

DOCKET NO.  10-14 398	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California



THE ISSUE

Entitlement to accrued benefits.


REPRESENTATION


Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Rebecca Feinberg, Counsel




INTRODUCTION

The Veteran served on active duty from June 1966 to July 1974.  The Veteran died in April 2008, and the appellant is his surviving spouse.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.

A review of the Veteran's virtual VA claims file and Veterans Benefits Management System file reveals that they contain only evidence that is also contained in the paper claims file.



FINDING OF FACT

At the time of his death in April 2008, the Veteran did not have a claim pending for entitlement to any VA benefits, and there were no due and unpaid periodic monetary benefits that he was entitled to receive.



CONCLUSION OF LAW

The appellant is not entitled to accrued benefits.  38 U.S.C.A. § 5121 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.157, 3.160, 3.1000 (2013).



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).  Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it 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. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). 

Here, the appellant was sent a letter in June 2008, prior to the initial decision on the claim, that informed her of what evidence was required to substantiate the claim and of her and VA's respective duties for obtaining evidence.  Thus, the duty to notify was satisfied.

The Board also finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Veteran's service treatment records, VA hospitalization records, and autopsy report have all been associated with the claims file.

Moreover, the Board notes that this matter involves an inquiry based upon the evidence of record prior to the Veteran's death and not based upon the development of new evidence.  There is no indication or assertion that there is any outstanding evidence that would be in VA's constructive possession.  Thus, the Board finds that there is no reasonable possibility that any further assistance would aid the appellant in substantiating her claim for accrued benefits. 38 U.S.C.A. §§ 5102, 5103 and 5103A (West 2002); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to an appellant are to be avoided).  Accordingly, it is not prejudicial for the Board to decide the issue of entitlement to accrued benefits without further development. Bernard v. Brown, 4 Vet. App. 384 (1993).


II.  Law and Analysis

Although a veteran's claim terminates with that veteran's death, a qualified survivor may carry on the deceased veteran's claim by submitting a timely claim for accrued benefits. See 38 U.S.C.A. § 5121 (West 2002); see Landicho v. Brown, 7 Vet. App. 42, 47 (1994).  While an accrued benefits claim is separate from the veteran's claim filed prior to death, the accrued benefits claim is derivative of the veteran's claim; thus, an appellant takes the veteran's claim as it stood on the date of death, but within the limits established by law. See Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). 

Applicable regulations provide that periodic monetary benefits (other than insurance and servicemember's indemnity) authorized under laws administered by VA to which an individual was entitled at his or her death under existing ratings or decisions or those based on evidence in the file at date of death, and due and unpaid will, upon the death of such individual, be paid to the surviving spouse or other appropriate party. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2013). For a surviving spouse, children, or dependent parents 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." Jones v. West, 136 F.3d 1296, 1299-1300 (Fed. Cir. 1998).  "Evidence in the file at the date of death" means evidence in VA's possession on or before the date of the beneficiary's (in the instant case, the veteran's) death, even is such evidence was not physically located in the VA claim folder on or before the date of death, in support of a claim for VA benefits pending on the date of death. 38 C.F.R. § 3.1000(d)(4) (2013).  "Claim for VA benefits pending on the date of death" means a claim filed with VA that had not been finally adjudicated by VA on or before the date of death. 38 C.F.R. § 3.1000(d)(5) (2013). 

An application for accrued benefits must be filed within one year after the date of death.  A claim for death pension, compensation, or dependency and indemnity compensation by an apportionee, surviving spouse, child, or parent is deemed to include a claim for any accrued benefits. 38 C.F.R. § 3.1000(c) (2013). 

Under VA laws and regulations, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by the VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a).  "Claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992).  Any communication or action, indicating an intent to apply for one or more benefits under laws administered by the VA from a claimant may be considered an informal claim.  Such an informal claim must identify the benefits sought.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a).  To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the appellant is not entitled to accrued benefits.  Initially, the Board notes that she did submit a claim for such benefits within one year of the Veteran's death.  However, the claim must be denied by there was no pending claim or due and unpaid benefits that the Veteran was entitled to at the time of his death.  

The Veteran was not service-connected for any disability at the time of his death.  In addition, he did not file a claim for any VA benefit prior to his death in April 2008.  In fact, no evidence or statement had ever been submitted to VA by the Veteran or on his behalf until after his death. 

In a December 2009 written statement, the appellant asserted that the Veteran applied for VA benefits several years ago and was told that he was not eligible for benefits.  She provided no other details with regard to dates, applications, or specifics as to the benefit sought.  As stated above, there was no evidence relative to the Veteran received at VA prior to his death.  

While the Board acknowledges the appellant's assertion, there is no evidence that such a claim was ever filed or that he ever submitted any other correspondence to the RO.  There is a presumption of regularity in the law to the effect that "[t]he presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties."  Clear evidence to the contrary is required to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App. 307 (1992), (quoting United States v. Chemical Foundation, 272 U.S. 1, 14-15   (1926)).  While the Ashley case dealt with regularity in procedures at the Board, in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the presumption of regularity was applied to procedures at the RO level, such as in the instant case.  It is clear from these cases that a statement of an appellant, standing alone, is not sufficient to rebut the presumption of regularity in RO operations. See Jones v. West, 12 Vet, App. 98, 100 (1998); Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992).  In this case, there is no evidence that the RO did not properly fulfill its duty in handling any mail that would have been submitted by the Veteran or a representative.  The appellant's allegation that the Veteran previously filed a claim that was denied is insufficient to rebut the presumption of regularity.  

The Board also notes that, in an April 2010 written statement, the appellant asserted that the Veteran's benefits should have been activated at the time he was admitted to and treated at the VA hospital.  The evidence of record shows that the Veteran was admitted to and treated at a VA hospital in April 2008, which was just prior to his death.  However, the mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit. See Brannon v. West, 12 Vet. App. 32, 35 (1998); Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006).  Although there are two recognized exceptions to this general rule, those exceptions are applicable only when an underlying claim has been awarded and the medical records demonstrate that the veteran's disability has increased, or when an underlying claim has been denied and the medical records are new and material evidence to reopen the claim. See 38 C.F.R. § 3.157(b) (2013); see also Leonard v. Principi, 17 Vet. App. 447, 451 (2004); Lalonde v. West, 12 Vet. App. 377, 381 (1999).  Neither of those exceptions applies in this case, as the Veteran did not have any service-connected disabilities, and no claim had been previously denied.  Therefore, the April 2008 hospitalization records cannot be accepted as a claim for benefits in this case.

Based on the foregoing, the Board finds that the Veteran did not have a claim for entitlement to any VA benefits pending at the time of his death and was not entitled to receive due and unpaid periodic monetary benefits.  Thus, there is no legal basis upon which to award accrued benefits.  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.  Accordingly, the appellant's claim must be denied.


ORDER

Entitlement to accrued benefits is denied.



____________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs