Citation Nr: 1428061 Decision Date: 06/20/14 Archive Date: 06/26/14 DOCKET NO. 12-03 028 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether VA is permitted to reissue to the estate of the surviving spouse a payment that was due the spouse pursuant to 38 C.F.R. § 3.20. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran had active service in World War II, from November 1941 to November 1944. The Veteran died in January 2011. The appellant is the Veteran's surviving adult son. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 decision by the Department of Veterans Affairs (VA) Pension Management Center in Milwaukee, Wisconsin. The case was later transferred to the VA Regional Office (RO) in St. Louis, Missouri. In March 2013, the appellant testified before the undersigned Veterans Law Judge at a hearing convened at the RO. A copy of the transcript has been included in the record. FINDINGS OF FACT 1. The Veteran died in January 2011. 2. In January 2011, VA issued a check in the amount of $1,064.00, intended to be paid to the order of the Veteran's surviving spouse (the appellant's mother), representing the Veteran's benefit in the month of his death. The check, however, contained the incorrect name of the surviving spouse. 3. In January 2011, the appellant timely notified VA of the error by phone and in writing, returned the check, and requested a reissuance of the check in the appropriate name. 4. In April 2011, prior to the reissuance of the corrected check, the surviving spouse died. 5. Payment for the Veteran's benefit in the month of his death is a one-time benefit for the surviving spouse, and not a periodic monetary payment subject to accrued benefits law. CONCLUSION OF LAW VA is not permitted to reissue to the estate of the surviving spouse a payment that was due the spouse pursuant to 38 C.F.R. § 3.20. 38 U.S.C.A. §§ 5112(b)(1), 5121, 5121A, 5122 (West 2002); 38 C.F.R. §§ 3.20, 3.1000 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The facts in this case are not in dispute. The Veteran, the appellant's father, died in January 2011. Pursuant to 38 C.F.R. § 3.20, VA issued a check in the amount of $1,064.00, intended to be paid to the order of the Veteran's surviving spouse (the appellant's mother), representing the Veteran's benefit in the month of his death. However, the check contained the surviving spouse's first name and address, but not her correct middle initial, or her correct last name. Immediately after his mother received the check in January 2011, the appellant contacted VA both by phone and in writing, returned the check, and requested that the payment be reissued to her containing her correct name. VA agreed to do so and took steps to cancel the first check. Before VA issued the corrected check, the appellant's mother died in April 2011. The appellant maintains that the corrected check should be issued to his mother's estate. Based upon a review of the entire record, this case does not involve an issue of entitlement. This is not a case in which a surviving child is seeking entitlement to death benefits under 38 C.F.R. § 3.20. Moreover, this is not a case in which a surviving spouse is seeking entitlement to death benefits under 38 C.F.R. § 3.20 - VA already recognized the surviving spouse's entitlement to such a payment. The problem here is that, due to a clerical error on VA's part, the surviving spouse did not receive the check for the payment prior to her death. A payment pursuant to 38 U.S.C.A. § 5310, and its implementing regulation 38 C.F.R. § 3.20, is a one-time payment, payable only to the surviving spouse. This is different from accrued benefits pursuant to 38 U.S.C.A. §§ 5121, 5121A, and 5122, and the implementing regulation of 38 C.F.R. § 3.1000. Those are periodic monetary benefits authorized under the laws administered by VA, to which a Veteran was entitled at his death under existing ratings or decisions, and which will be paid to an appropriate claimant instead, in the case of the Veteran's death. As the Court of Appeals for Veterans Claims (CAVC) succinctly explained recently: Section 5121 ... addresses the categories of persons to whom VA may disperse certain periodic monetary accrued benefits due and unpaid at the time of the payee's death. Section 5121A sets out a process of substitution for those persons eligible under section 5121 to collect accrued benefits due and unpaid when a VA claimant or VA beneficiary dies. Section 5122 specifies how, when there are no accrued benefits beneficiaries eligible under 5121, an accrued benefits payee's estate may be entitled to accrued benefits when the accrued benefits payee received, but did not negotiate the accrued benefits check prior to the payee's death. Morris v. Shinseki, 26 Vet. App. 494, 504 (2014). Unfortunately for the appellant in this case, the benefit at issue is not by law an accrued benefit due the Veteran; that is, the Veteran is not entitled to payment under this provision, rather, his surviving spouse is. Thus, sections 5121, 5121A, and 5122, which provide for payment in the case of death, do not apply. No provision in law permits the one-time spousal payment to be paid to the estate of the surviving spouse. Apart from the provisions outlined above, an individual's right to VA compensation terminates upon her death, and that individual claim for any amounts accruing prior to death does not survive her death. See 38 U.S.C.A. § 5112(b)(1). While the Board is sympathetic to the appellant's situation, in that his mother was absolutely entitled to this payment, and due to VA's error, she did not receive it prior to her death, it is bound by the law in effect and has no authority to grant payment of benefits on an equitable basis. Only the Secretary of VA has the authority to grant such equitable relief. Specifically, the provision of 38 U.S.C.A. § 503(a) states: If the Secretary determines that benefits administered by the Department have not been provided by reason of administrative error on the part of the Federal Government or any of its employees, the Secretary may provide such relief on account of such error as the Secretary determines equitable, including the payment of moneys to any person whom the Secretary determines is equitably entitled to such moneys. The appellant is encouraged to apply for equitable relief directly to the Office of the Secretary, Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. ORDER VA is not permitted to reissue to the estate of the surviving spouse a payment that was due the spouse pursuant to 38 C.F.R. § 3.20. ___________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs