Citation Nr: 1618601	
Decision Date: 05/09/16    Archive Date: 05/19/16

DOCKET NO.  12-20 090	)	DATE
	)
	)

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


THE ISSUE

Entitlement to accrued benefits.


ATTORNEY FOR THE BOARD

D. M. Donahue Boushehri, Counsel 


INTRODUCTION

The Veteran served on active duty from November 1955 to September 1958.  He died in April 2008 and the appellant is his daughter.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.

The issue was previously remanded by the Board in April 2016 for a Travel Board hearing.  The Travel Board hearing was scheduled for March 2016.  Although notified by mail in June 2016, the appellant failed to report for the hearing.  The hearing is considered withdrawn.   


FINDINGS OF FACT

1.  The Veteran died in April 2008.

2.  The Veteran was not married at the time of his death. 

3.  The appellant, who contends that she is the child of the Veteran for VA purposes, was born in November 1963.

4.  Before attaining the age of 18 years, the appellant did not become permanently incapable of self-support.


CONCLUSION OF LAW

There is no legal entitlement to accrued benefits.  38 U.S.C.A. § 5121(a) (West 2014); 38 C.F.R. §§ 3.1000 (2015).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The United States Court of Appeals for Veterans Claims (Court or CAVC) has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence.  See Sabonis v. Brown, 6 Vet. App. 426 (1994); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001).  As the law is dispositive, the VCAA does not apply.  The facts dispositive of this appeal are not in dispute.

Accrued Benefits Legal Criteria and Analysis

The appellant filed an application for accrued benefits by a surviving child.  As the title of the application suggests, in order to be eligible for any of the benefits sought, the appellant must be the child of a veteran under VA regulations.  See 38 U.S.C.A. § 1310(a) (VA shall pay dependency and indemnity compensation to 'children' of a veteran in certain circumstances); 38 U.S.C.A. § 1318 (VA shall pay dependency and indemnity compensation to 'children' of a veteran in certain circumstances); 38 U.S.C.A. § 1542 (VA shall pay pension to 'child' of a deceased veteran in certain circumstances); 38 U.S.C.A. § 5121(a)(2)(B) (VA shall pay accrued benefits to 'children' of a veteran in certain circumstances).

In order to be considered a child for purposes of any of the above benefits, a person must be: 1) unmarried and under the age of eighteen years; 2) before attaining the age of eighteen years, permanently incapable of self-support; or, 3) after attaining the age of eighteen years and until completion of education or training (but not after attaining the age of twenty-three years), pursuing a course of instruction at an approved educational institution.  38 U.S.C.A. § 101(4)(A); 38 C.F.R. §§ 3.57, 3.1000(d)(2).  The person must also be a legitimate child, a legally adopted child, a stepchild who is a member of the Veteran's household or was a member at the time of the Veteran's death, or an illegitimate child (in certain circumstances).  38 U.S.C.A. § 101(4)(A); 38 C.F.R. §§ 3.57, 3.1000(d)(2).

The appellant was born in November 1963.  She was 45 years old at the time of her father's death in April 2008 and when the appellant filed her application for death benefits in May 2008.  There is no evidence or argument that the appellant was permanently incapable of self-support prior to or on her eighteenth birthday.  There, there is no legal entitlement to death benefits.  38 U.S.C.A. § 101(4)(A); 38 C.F.R. § 3.57.  

Accrued benefits are defined as 'periodic monetary benefits... authorized under law administered by [VA], to which a payee was entitled at his or her death under existing ratings for decisions or those based on evidence in the file at the date of death, and due and unpaid....'  38 U.S.C.A. § 5121(a); 38 C.F.R. 3.1000(a).  An '[a]pplication for accrued benefits must be filed within one year after the date of death.'  38 C.F.R. § 3.1000(c).  In this case, the appellant's claim was timely filed as her father died in April 2008, and the appellant's claim was filed in May 2008.

However, the record reflects that there were no claims pending at the time of the appellant's father's death in 2008; there was no unrated medical evidence in the claims file at the time of his death; and he was not entitled to any unpaid benefits at the time of his death.  Thus, the claim for accrued benefits must be denied.  A 'claim for VA benefits pending on the date of death' is defined as '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).

Although the appellant filed within the proper time limits, claim for accrued benefits must be denied as a matter of law because she is not a 'child' under VA law.  She has not, therefore, met the basic eligibility requirements for these benefits.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

The Board is sympathetic to the appellant and the significant loss of her father.  The Board is, however, bound by the applicable law and regulations and is without authority to grant benefits on an equitable basis.  38 U.S.C.A. §§ 503, 7104(c) (West 2014).  No equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress.  Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992).


ORDER

Entitlement to accrued benefits is denied.



____________________________________________
Nathaniel J. Doan
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs