Citation Nr: 1751447 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 17-35 526 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to nonservice-connected death pension benefits. 2. Entitlement to accrued benefits. ATTORNEY FOR THE BOARD K. Parke, Associate Counsel INTRODUCTION The Veteran served in the Philippine Commonwealth Army from December 1941 to May 1942 and from September 1945 to October 1945. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2016 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The Veteran died in December 2008. The appellant is the Veteran's surviving spouse. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Service Department has determined that the deceased Veteran only had service in the Philippine Commonwealth Army, which is not qualifying service for nonservice-connected death pension benefits. 2. At the time of his death, the Veteran did not have any pending claims for benefits before VA. CONCLUSIONS OF LAW 1. The criteria for a nonservice-connected death pension have not been met. 38 U.S.C. § § 107, 1541 (2012); 38 C.F.R. §§ 3.3, 3.40 (2017). 2. The criteria establishing entitlement to accrued benefits have not been met. 38 U.S.C. §§ 5101, 5121; 38 C.F.R. § 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist Generally, prior to consideration of an appeal, the Board must determine whether VA has met its statutory duty to notify the appellant of the information and evidence necessary to substantiate her claims and whether the VA has assisted the appellant in procuring the evidence she reasonably identifies to the VA. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, in cases where the outcome is based on statutory interpretation, such as this one, rather than consideration of the facts in evidence, the statutory and regulatory provisions pertaining to VA's duty to notify and assist do not apply. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Furthermore, there is no possibility that any additional notice or development would aid the appellant in substantiating her claim of entitlement to death pension or accrued benefits. Therefore, any deficiency of notice or of the duty to assist constitutes merely harmless error. Death Pension When a veteran dies as a result of a nonservice-connected disability, VA shall pay his surviving spouse a death pension, provided that the Veteran had the requisite wartime service and that the surviving spouse's net worth and annual income do not exceed the annual rate of pension. 38 U.S.C. § 1541; 38 C.F.R. § 3.3(b)(4). Both the wartime service and income and net worth criteria must be met for the appellant to prevail. The Veteran served in the Philippine Commonwealth Army from December 1941 to May 1942 and from September 1945 to October 1945. Although such service was clearly performed during World War II, the applicable law and regulations specifically preclude the award of death pension to a surviving spouse for such service. 38 U.S.C. § 107; 38 C.F.R. § 3.40(c), (d). Since the law is dispositive of the issue, the appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In arriving at this decision, the Board does not need to reach a determination with respect to the second criteria concerning the appellant's net worth and annual income. Accrued Benefits Accrued benefits are "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. § 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). By statute, the appellant takes the Veteran's claims as they stood on the date of his death. Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996). In Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), the Federal Circuit concluded that, "for a surviving spouse 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." See also 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a). For a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits; (ii) the Veteran had a claim pending at the time of his death; (iii) the Veteran would have prevailed on the claim if he had not died; and, (iv) the claim for accrued benefits was filed within one year of the Veteran's death. 38 U.S.C. §§ 5101(a), 5121; 38 C.F.R. § 3.1000. The record reflects that there were no claims pending at the time of the Veteran's death; there was no unrated medical evidence in the claims file at the time of his death; and, the Veteran was not entitled to any unpaid benefits at the time of his death. Thus, the claim for accrued benefits must be denied. In sum, the Board finds that basic eligibility to receive VA accrued benefits is not warranted by law because there was no claim for VA benefits pending before the Veteran's death in December 2008. The United States Court of Appeals for Veterans Claims (Court) has held that in cases such as this, where the law is dispositive, the claim should be denied because of the absence of legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to nonservice-connected death pension is denied. Entitlement to accrued benefits is denied. ____________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs