Citation Nr: 1802802	
Decision Date: 01/12/18    Archive Date: 01/23/18

DOCKET NO.  14-10 503	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to accrued benefits.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

M.G. Mazzucchelli, Counsel


INTRODUCTION

The Veteran had active service from December 1942 to March 1946.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2011 decision of the Department of Veterans Affairs (VA) Regional Office and Insurance Center in Philadelphia, Pennsylvania.  The case is currently under the jurisdiction of the Columbia, South Carolina Regional Office (RO).  The appellant is the Veteran's adult son.


FINDING OF FACT

The appellant does not satisfy the statutory definition of "child" under the governing statute to be eligible for the payment of accrued benefits, and payment of accrued benefits to the estate of the Veteran is not authorized by law.


CONCLUSION OF LAW

The criteria for entitlement to accrued benefits are not met.  38 U.S.C. §§ 101 (4)(A), 5121 (2012); 38 C.F.R. §§ 3.57, 3.1000 (2017); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).



REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

The provisions of the Veterans Claims Assistance Act of 2000 (VCAA) are not applicable to the instant appeal because turns on a matter of law and not on the underlying facts or development of the facts.  See Manning v. Principi, 16 Vet. App. 534, 542 (2002).  The VCAA can have no effect on appeals that are decided on an interpretation of the law as opposed to a determination based on fact. See Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).  The Board therefore finds that any deficiency in VA's VCAA notice or development action is harmless error.

II.  Accrued Benefits

Accrued benefits are 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.  Accrued benefits shall, upon the death of such individual, be paid to the living person first listed below: (i) the Veteran's spouse; (ii) the Veteran's children (in equal shares); (iii) the Veteran's dependent parents (in equal shares).  38 U.S.C. § 5121 (a)(2); 38 C.F.R. § 3.1000 (a)(1).

To be eligible for accrued benefits, the claimant must qualify as a member of one of the statutorily enumerated categories of recipients listed above.  See Burris v. Principi, 15 Vet. App. 348, 352-53 (2001) (concluding that a 70-year-old appellant was ineligible for accrued benefits because he did not satisfy statutory definition of "child" in 38 U.S.C. § 101 (4)(A) which excludes anyone over age 23 unless they were "permanently incapable of self-support" before attaining age 18).  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)(5).

The definition of the term "child" of the Veteran as defined for the purposes of establishing dependency status, means an unmarried person who is a legitimate child; a child legally adopted before the age of 18 years; a stepchild who acquired that status before the age of 18 years and who is a member of the Veteran's household at the time of the veteran's death; or an illegitimate child.  In addition, the child must be someone who: (1) is under the age of 18 years; (2) before reaching the age of 18 years became permanently incapable of self-support; or (3) 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); 38 C.F.R. § 3.57 (a).

The evidence shows that the Veteran filed a claim for VA pension benefits based on the need for permanent aid and attendance in December 2009.  While that claim was pending, the Veteran died in February 2010.  The Veteran's surviving spouse died 19 days later, also in February 2010.  Prior to her death, the Veteran's surviving spouse had not filed any claim for VA death benefits or, for substitution with respect to the Veteran's pending claim.

In June 2010 the appellant filed a claim for accrued benefits, seeking the pension benefits to which he believed the Veteran was entitled based on the claim pending at the time of his death.

In February 2011, VA paid to the appellant the burial expenses of the Veteran.  

In the April 2011 decision on appeal, the Regional Office and Insurance Center denied the claim, finding that the appellant did not qualify as a "child" under the controlling regulation. 

At a hearing at the RO in February 2014, the appellant testified that the Veteran's funeral expenses were paid for by the Veteran's estate.  

Upon consideration of whether the appellant is eligible to receive benefits under 38 U.S.C. § 5121, the Board finds that the appellant has not established standing to receive any accrued benefits.  To that end, the appellant does not contend, nor does the evidence reflect, that he is under the age of 18, that he became permanently incapable of self-support before the age of 18, or that he 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 because he does not meet the statutory definition of "child" under 38 U.S.C. § 101 (4)(A) to be eligible for the payment of accrued benefits, including for purposes of substitution.

To the extent that the appellant is acting as administrator on behalf of the estate of the Veteran, the Board notes that in Wilkes v. Principi, the United States Court of Appeals for Veterans Claims (Court) affirmed a Board decision which found that a veteran's estate was not eligible to receive accrued benefits under 38 U.S.C. § 5121.  Id.  The Court noted that, in an October 1997 advisory opinion, VA General Counsel interpreted that accrued benefits were not payable to the Veteran's estate under this regulation because the estate does not fall within the class of individuals eligible to receive accrued benefits listed within it.  Id. at 240; see also VAOPGCADV 31-91, citing VAOPGCPREC 22-92.  The Court determined, in Wilkes, that the funds at issue in that case were accrued benefits under 38 U.S.C. § 5121 and noted that the legislative history of 38 U.S.C. §§ 5121 and 5122 reveal that Congress intended that payments directed to a payee after his or her death be payable under 38 U.S.C. § 5121 rather than under 38 U.S.C. § 5122.  Wilkes at 242. The Court cited the report of the Senate Committee on Veterans' Affairs, stating, "A person may die before receiving his first payment under an approved award covering a retroactive period of entitlement.  Such accrued amounts . . . are payable . . . in accordance with [the predecessor of 38 U.S.C. § 5121 (a)] to the surviving spouse, child or children, dependent mother or father, or the person who bore the expenses of the last illness and burial." S. Rep. No. 227 (1953), reprinted in 1953 U.S.C.C.A.N. 1665, 1666.

The Veteran's estate does not fall under any specified category of payees for accrued benefits under 38 U.S.C. § 5121 and 38 C.F.R. § 3.1000 (a)(1)-(4). Therefore, the Board finds that the Veteran's estate is not eligible to receive accrued benefits under 38 U.S.C. § 5121.

In sum, the appellant has not established standing to receive any accrued benefits due the Veteran at the time of his death.  For these reasons, the Board finds that the appeal must be denied.


ORDER

Entitlement to accrued benefits is denied.



____________________________________________
D. JOHNSON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs