Citation Nr: 1643921	
Decision Date: 11/18/16    Archive Date: 12/01/16

DOCKET NO.  13-25 315A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to the Veteran's month of death payment. 

2.  Entitlement as a substitute claimant to accrued benefits due to the Veteran's surviving spouse prior to her death.


WITNESSES AT HEARING ON APPEAL

The appellant and R.G.


ATTORNEY FOR THE BOARD

K. Conner, Counsel


INTRODUCTION

The Veteran served on active duty from March 1944 to December 1945.  He died in May 2011, and his surviving spouse died in August 2011.  The appellant in this case is their daughter.  

This matter came to the Board of Veterans' Appeals (Board) on appeal from an August 2012 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the appellant's claim for accrued benefits and the Veteran's month of death payment. 

The Board notes that the issues on appeal originally included entitlement to burial benefits.  Before the matter was certified to the Board, however, in a June 2013 determination, the RO awarded the appellant's claim for burial benefits.  Thus, this matter is no longer before the Board.  

In July 2016, the appellant testified at a hearing at the RO before the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the record on appeal.  

The issue of entitlement as a substitute claimant to accrued benefits due to the Veteran's surviving spouse prior to her death is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).



FINDINGS OF FACT

1.  At the time of his death in May 2011, the Veteran was in receipt of VA compensation for a total rating based on individual unemployability due to service-connected disabilities (TDIU).  

2.  In August 2011, the Veteran's spouse died, prior to VA's issuance of payment to her for the month of the Veteran's death.


CONCLUSION OF LAW

The criteria for entitlement to payment of the Veteran's month of death payment have not been met.  38 U.S.C.A. §§ 5107, 5310(b) (West 2014); VAOPGCPREC 1-2009 (January 22, 2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

As a preliminary matter, the Board notes that the pertinent facts are not in dispute with respect to the issue adjudicated below.  Resolution of this appeal depends on the application of the law rather than on weighing of the evidence.  Under such circumstances, the VCAA is not applicable and any failure to meet the VCAA duty to assist and notify is harmless error.  See Valiao v. Principi, 17 Vet. App. 229 (2003).  For these reasons, the Board finds that no further notification or development action is necessary on the issue now being decided.


Background

At the time of the Veteran's death in May 2011, he was in receipt of VA compensation for a total rating based on individual unemployability due to service-connected disabilities (TDIU).  

In July 2011, the Veteran's surviving spouse submitted applications for burial benefits, dependency and indemnity compensation (DIC), and accrued benefits.  On her application, she indicated that she had borne the Veteran's burial expenses and submitted a receipt from the funeral home.  

Unfortunately, the Veteran's surviving spouse died in August 2011, prior to adjudication of the claims.  In a September 2011 letter to the executor of her estate, the RO explained that, in light of the death of the Veteran's spouse, her claims for VA death and burial benefits would no longer be processed.  

In November 2011, the appellant submitted a VA Form 21-601, Application for Accrued Amounts Due a Deceased Beneficiary, stating that her mother had been owed money at the time of her death, particularly the Veteran's month-of-death check.  She explained that, after the Veteran's death, her mother, at the direction of VA, had returned his VA compensation for the month of his death with the assurance that a check in an equal amount would be issued to her in her own name.  

The appellant indicated, however, that the money was not re-deposited.  After her mother died, the appellant called VA to inquire why the money had not been redeposited into her mother's account and was advised that she should file an accrued benefits claim in order to get the money reissued in her name.  

In December 2011, the appellant filed a VA Form 21-0847, Request for Substitution of Claimant upon Death of Claimant.  She indicated that she was the daughter of the Veteran and his spouse.  

At the July 2016 hearing, the appellant explained that, following the Veteran's death, her mother returned the compensation that the Veteran had received for the month of his death.  The appellant explained that she had been advised by a VA employee that the money would be reissued in her mother's name.  Unfortunately, however, the appellant's mother died before the money was re-issued.  The appellant testified that she had since discovered that it was VA's policy that her mother should never have had to return the money in the first place.  In addition, she indicated that, once her mother had returned the money, she was clearly owed it again.  But for the delay on the part of VA, she would have received it prior to her death.


Analysis

VA compensation payable to a veteran ends on the last day of the month before the veteran's death.  See 38 U.S.C. § 5112(b)(1); see also Pelea v. Nicholson, 497 F.3d 1290, 1291 (Fed. Cir. 2007).  

Under 38 U.S.C. § 5310, however, a surviving spouse of a veteran is entitled to a one-time benefit for the month of the veteran's death if at the time of the veteran's death, the veteran was receiving VA compensation, i.e. a month of death check.  See also 38 C.F.R. § 3.20(b) (2015).

In this case, however, the Veteran's spouse unfortunately died prior to VA's issuance of the month of death check.  VA's General Counsel has held that, in circumstances such as this, where a veteran's surviving spouse, entitled to receive the section 5310(b)(1) month of the veteran's death benefit, dies before receiving the benefit, VA is not required to pay to the deceased surviving spouse's estate the amount of the section 5310(b) benefit the surviving spouse would have received, but for his or her death.  VAOPGCPREC 1-2009 (January 22, 2009). 

VA's General Counsel reasoned that, under the law, the section 5310(b) benefit terminates with the death of the surviving spouse.  Specifically, the statutory terms chosen by Congress in enacting section 5310, read in the context of the statutory scheme for Veterans' benefits, clearly indicates that the section 5310(b) benefit was intended solely for the surviving spouse of a veteran.  Cf. Pelea v. Nicholson, 497 F.3d 1290, 1292 (Fed. Cir. 2007) (providing similar analysis concerning dependency and indemnity compensation benefits upon the death of a surviving spouse).  Under these circumstances, because the appellant is not the Veteran's surviving spouse, she is not entitled to the Veteran's month of death check.  

The Board has also carefully considered the appellant's arguments to the effect that she is entitled to the Veteran's month of death check as an accrued benefit owed to her mother.  VA's General Counsel, however, has held that that, where a surviving spouse entitled to the section 5310(b) benefit dies before receiving the benefit, the section 5310(b) benefit is not subject to the accrued benefits provisions of section 5121 because the section 5310(b) benefit is a one-time payment for a veteran's month of death and, therefore, cannot be considered "periodic monetary benefits" for purposes of section 5121.  Id.

While the Board is sympathetic to the appellant's arguments, it is bound by the applicable law and regulations, as well as the General Counsel's opinion.  See 38 U.S.C.A. § 7104(c).  Under these circumstances, the Board must find that there is no legal basis for granting this appeal.


ORDER

Entitlement to the Veteran's month of death payment is denied. 


REMAND

The appellant in this case also seeks recognition as a substitute claimant to accrued benefits due to her mother, the Veteran's surviving spouse, prior to her death.  

Periodic monetary benefits to which a VA payee was entitled at his or her death, either by reason of existing VA ratings or decisions or those based on evidence in the file at date of death, and due and unpaid, are known as "accrued benefits."  38 U.S.C.A. § 5121 (West 2014); 38 C.F.R. § 3.1000 (2015); see also Zevalkink v. Brown, 102 F.3d 1236 (Fed Cir. 1996).

For a claimant to prevail on an accrued benefits claim, the record must show that:  (i) the individual has standing to file a claim for accrued benefits, (ii) the VA payee had a claim pending at the time of death, (iii) the VA payee would have prevailed on the claim if he or she had not died; and (iv) the claim for accrued benefits was filed within one year of the VA payee's death.  38 U.S.C.A. §§ 5121, 5101(a) (West 2014); 38 C.F.R. § 3.1000 (2015); Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998).

If a VA payee dies on or after October 10, 2008, a person eligible for accrued benefits under § 3.1000(a) may also request to substitute for the deceased claimant in a claim for periodic monetary benefits that was pending when the claimant died.  38 U.S.C.A. § 5121A (West 2014); 38 C.F.R. § 3.1010(a) (2015).  In this case, a review of the record indicates that the RO has denied the appellant's claim on the basis that she does not have the required standing.  

Upon the death of a surviving spouse, accrued benefits are payable only to the veteran's children.  38 U.S.C.A. § 5121 (West 2014); 38 C.F.R. § 3.1000(a)(3) (2015).  In all other cases, only so much of the accrued benefit may be paid as may be necessary to reimburse the person who bore the expense of last sickness or burial.  38 U.S.C.A. § 5121(a)(6) (West 2015); 38 C.F.R. § 3.1000(a)(5) (2015).

For VA purposes, the term "child" means an unmarried person under the age of 18.  See 38 U.S.C.A. § 101(4) (West 2014); 38 C.F.R. §§ 3.57, 3.1000 (2015).  The only exceptions to this rule are if the child is a student pursuing higher education, in which case the age limit is 23 years old, or the child became permanently incapable of self-support before reaching the age of 18, in which case there is no age limit.  Id.  

In this case, although the appellant is the daughter of the Veteran and his spouse, she does not qualify as a "child" who can receive accrued benefits, pursuant to 38 C.F.R. §§ 3.57.  The appellant is beyond the age of 23, and the record contains no indication, nor does she contend, that she became permanently incapable of self-support before reaching the age of 18.  Under these circumstances, the appellant is only eligible for so much of the accrued benefit due her mother as may be necessary to reimburse her for any expenses she bore for her mother's last sickness or burial.  In this case, the RO denied the appellant's claim to substitute on the grounds that she did not provide evidence indicating that she had borne the expenses for her mother's last sickness or burial.  

At the July 2016 Board hearing, however, the appellant testified that she had borne some of the expenses for her mother's funeral.  Following the hearing, she submitted additional evidence, including a receipt from a funeral home reflecting payment by the appellant for her mother's burial services.  Given this evidence, it appears that the appellant may have the necessary standing as a substitute claimant to accrued benefits due to her mother, the Veteran's surviving spouse, prior to her death.  The record also indicates that the appellant's mother had claims pending prior to her death, including a claim for DIC as the surviving spouse of the Veteran.  The RO has not yet considered the appellant's claim beyond her status as an appropriate claimant.  Under these circumstances, the Board finds that a remand is necessary to avoid the possibility of prejudice to the appellant.  Bernard v. Brown, 4 Vet. App. 384 (1993).


Accordingly, the case is REMANDED for the following action:

1.  The AOJ should review the record and send an appropriate letter to the appellant to ensure compliance with all notice and assistance requirements set forth in the VCAA and its implementing regulations regarding the appellant's request to substitute as a claimant to accrued benefits due to her mother, the Veteran's surviving spouse, prior to her death.

2.  After conducting any development deemed necessary based on any response received from the appellant, the AOJ should review the claim, considering all of the evidence of record.  If the benefit sought on appeal remains denied, the appellant and any representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).


____________________________________________
J.W. ZISSIMOS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs