Citation Nr: 1334860 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 11-33 412 ) 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 A. Barner, Associate Counsel INTRODUCTION The Veteran performed recognized guerrilla service from May 1945 to October 1945 and service with the regular Philippine Army from October 1945 to April 1946. He died in October 2007. Following his death, the Veteran's widow presented a claim of entitlement to accrued benefits. She, however, died in November 2009. The Appellant is the Veteran and his spouse's daughter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisional letters of the Regional Office in Manila, Philippines. The Board advanced this appeal on the docket (AOD) pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT The Appellant does not qualify as a "child" of the Veteran for VA purposes of entitlement to accrued benefits, and she did not pay for the expenses of last sickness and burial of the Veteran. CONCLUSION OF LAW The criteria for entitlement to accrued benefits have not been met. 38 U.S.C.A. §§ 101(4)(A), 5121(a) (West 2002); 38 C.F.R. §§ 3.57, 3.1000(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013), imposes obligations on VA in terms of its duties to notify and assist claimants. The matters decided in this decision, however, rest on the interpretation and application of the relevant law, and the VCAA does not apply. See Mason v. Principi, 16 Vet. App. 129 (2002). Accrued Benefits 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. 2013); 38 C.F.R. § 3.1000 (2013); 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) (2013). Upon the death of a veteran, 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); 38 C.F.R. § 3.1000(a)(1). Upon the death of a surviving spouse, to the Veteran's children. 38 U.S.C.A. § 5121(a)(2); 38 C.F.R. § 3.1000(a)(2). 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 (2013). 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 a 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). The Appellant, daughter of the Veteran and his spouse, has claimed entitlement to accrued benefits. By way of history, in September 2007 the Veteran filed to reopen the claim of entitlement to service connection for pulmonary tuberculosis, which the Board had denied in March 2007. In October 2007, the Veteran's spouse informed the VA that he had died in October 2007. She claimed entitlement to dependency and indemnity compensation, death pension and accrued benefits. In February 2008 a rating decision denied entitlement to service connection for the cause of the Veteran's death, and determined that there was not new and material evidence to reopen the Veteran's claim of entitlement to service connection for pulmonary tuberculosis for accrued benefit purposes. Following her Notice of Disagreement, a September 2008 Statement of the Case continuing the denial was issued. The Statement of the Case explained that to appeal the decision, a Form 9 should be completed and filed within 60 days from the date of that letter, or within one year of the date of the action appealed, if any time was remaining, or else the case would be closed. The Veteran's spouse did not file a timely Substantive Appeal, and later letters reference that the case was dismissed in February 2009, referring to the RO's closing the case. In February 2010 the Veteran's daughter informed the VA that her mother died November [redacted], 2009. The Appellant submitted letters received by her mother dated in 2008 and 2009 referencing a pending appeal. Claims folder review reveals that at that time the Veteran's spouse had requested payment from the Filipino Veterans Equity Compensation Fund, which was later denied in an April 2010 decisional letter. Neither the Veteran or the Veteran's spouse were in receipt of VA benefits. In October 2010 the Appellant submitted her mother's death certificate, and claimed entitlement to dependency and indemnity compensation, burial, and death compensation. In this application she requested these benefits referencing the Veteran. Specifically, she noted the Veteran's "sickness was not connected with his military service." In a November 2010 decisional letter the Appellant was denied entitlement to benefits. The RO held that the appellant was no longer considered a "child" for VA purposes because she was already over age 23, and there was no indication that she was permanently physically or mentally disabled prior to age 18. The Board observes that an earlier claim by the Veteran identified the Appellant's birthday as February [redacted], 1966. Also, in the Veteran's spouse's application, she had written "all over age" under the column listing children. A February 2011 letter informed the Appellant that if she did not fall within the eligible categories for children entitled to receive benefits, then she was not entitled to VA death benefits. In January 2011 the Appellant filed her Application for Accrued Benefits (VA Form 21-601). With this application, she submitted medical receipts for her father's confinement and last sickness, and burial receipts. A March 2011 decisional letter informed the Appellant that the VA did not owe her mother, the Veteran's widow, any money at the time of her death. A statement indicating a desire to appeal was received in April 2011. In May 2011 the Appellant again filed an Application for Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits (VA Form 21-534), claiming entitlement to service connection for the cause of the Veteran's death. She also filed an Application for Burial Benefits (VA Form 21-530). A September 2011 decisional letter denied burial benefits because, according to the receipt, the Veteran's spouse, and not the Appellant, had paid for the expenses of the Veteran's death. In addition, the letter indicated that the Appellant's claim for burial benefits was received more than two years from the Veteran's death. Further, the Veteran's death was not related to military service. An October 2011 Statement of the Case denied entitlement to accrued benefits, indicating that the Appellant did not have status, because her mother was not entitled to benefits at the time of her death. In November 2011 the Appellant's Substantive Appeal was received. Initially, the Appellant is older than 18, having attained that age more than two decades ago. At the time of her application for accrued benefits, the Appellant was 44 years old. The Appellant has not made any contentions, and there is no medical evidence of record, that she was permanently incapable of self-support by reason of physical or mental defect, prior to attaining the age of 18. As noted above, the term "child" for VA benefit purposes is defined as an unmarried child who is under the age of eighteen 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. Based on the foregoing, the Appellant is not entitled to benefits as the child of a veteran. The Appellant, as an adult child of the Veteran, is eligible for payment of accrued benefits only to the extent as may be necessary to reimburse her for bearing the expense of the Veteran's last sickness and burial. 38 C.F.R. § 3.1000(a)(4). Here, the evidence indicates that the Appellant's mother paid the Veteran's last sickness and burial expenses, and not the Appellant. As such, as a matter of law the Appellant's claim must be denied. ORDER Entitlement to accrued benefits is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs