Citation Nr: 1801154	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  15-26 766	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to accrued benefits.  


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

S. Solomon, Associate Counsel 




INTRODUCTION

The Veteran served on active military duty from September 1942 to November 1945.  The Veteran died in February 2012.  Appellant is the Veteran's daughter. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied the Appellant's claim for accrued benefits. 

The Appellant testified at a video conference hearing before the undersigned Veteran Law Judge (VLJ) in January 2017 and transcript of the hearing is of record. 


FINDINGS OF FACT

The Appellant does not satisfy the statutory definition of a "child" under the governing statute to be eligible for the payment of accrued benefits.  


CONCLUSION OF LAW

The criteria for entitlement for accrued benefits have not been met. 38 U.S.C. §§ 101 (4)(A), 5121 (2012); 38 C.F.R. §§ 3.57, 3.1000 (2017). 







REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. The Duties to Notify and Assist

Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.   

Ordinarily, the Board must ensure that the required notice and assistance provisions of the VCAA have been properly applied.  In this case, however, the relevant facts are not in dispute.  As such, the Board need not determine whether the VA complied with VCAA, as duties to notify and to assist do not apply to a claim if resolution of that claim is based on legal interpretation, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002); VAOPGCPREC 5-2004 (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit).

In sum, because there is no possibility that any additional notice or development would aid the Appellant in substantiating her claim, any deficiency of notice or of the duty to assist constitutes harmless error.

II. Accrued Benefits 

The Appellant contends that she is entitled to any accrued benefits owed to the Veteran as his daughter.  Review of the record shows that the Veteran was receiving special monthly pension based on the need for aid and attendance at the time of his death.  See July 2011 rating decision. 

Periodic monetary benefits under laws administered by the Secretary to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death and due and unpaid, shall, upon the death of a veteran, be paid to the living person first listed below: (A) the veteran's spouse; (B) the veteran's children (in equal shares); (C) the veteran's dependent parents (in equal shares). 38 U.S.C. §§ 5121 (a), 5121(a)(2)(2012); 38 C.F.R. § 3.1000 (a)(2017). 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. § 5121 (a) (6)(2012). 

The term "child" is defined, for purposes of VA benefits, as an unmarried person 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. § 101 (4)(A)(2012); 38 C.F.R. § 3.57(2017).

Applications for accrued benefits must be filed within one year after the date of death, which has been met in this case. See 38 U.S.C. § 5121 (c) (2012); 38 C.F.R. § 3.1000 (c)(2017).

In this case, as noted above, the Appellant is the Veteran's daughter.  However, the evidence weighs against a finding that she is eligible to receive accrued benefits.  That is, the Appellant does not contend, nor does the evidence reflect, that she is under the age of 18, that she became permanently incapable of self-support before the age of 18, or that she is under the age of 23 and is pursuing a course of instruction at an educational institution. Thus, the Appellant cannot be deemed an eligible survivor under 38 U.S.C. § 5121(2012) because she does not meet the statutory definition of "child" under 38 U.S.C. § 101 (4)(A)(2012) to be eligible for the payment of accrued benefits.

The Board has also considered whether reimbursement of expenses paid for last sickness and burial is warranted under 38 U.S.C. § 5121 (a)(6)(2012).  However, the Appellant's application for accrued amount due a decease beneficiary filed in May 2012 reflects that there was no expense of last sickness and burial claimed.   

Here, previous adjudications have discussed transfer of payment that was begun but not completed prior to the Veteran's death.  The issue before the Board, then, is whether the Appellant has separate entitlement based on her status as his daughter for VA to issue payment to her for benefits owed during the Veteran's lifetime.  In summary, the Board is sympathetic to the Appellant's claim, especially given that she has cared for her father since 2008.  The Board does not doubt the hardship the Appellant described during the hearing in January 2017. Nevertheless, the Board is bound by the law.  While the Appellant is the daughter of the Veteran, she does not meet the criteria for eligibility to receive accrued benefits.   Because the Appellant does not have standing to receive accrued benefit, the appeal must be denied. 


ORDER

Entitlement to accrued benefits is denied.   




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



Department of Veterans Affairs