Citation Nr: 1805311	
Decision Date: 01/26/18    Archive Date: 02/07/18

DOCKET NO.  15-34 284	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

Entitlement to accrued benefits.


ATTORNEY FOR THE BOARD

Jason A. Lyons, Counsel


INTRODUCTION

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) (2012).

The Veteran served on active duty from May 1971 to July 1974.  He died in June 2013.  The appellant is his surviving spouse.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, denying claims of entitlement to service connection for the cause of the Veteran's death; and the instant matter on appeal for entitlement to accrued benefits.  

During pendency of the appeal, the June 2017 RO rating decision granted the claim for service connection for the cause of the Veteran's death.  The matter remaining is the accrued benefits issue.


FINDINGS OF FACT

1. The original claims of record that would qualify for accrued benefits were claims filed in June 2013, also the month in which the Veteran passed away.  

2. There is not an available monetary benefit for accrued benefits purposes.  This is based on the timing of filing the original claim.  This determination is notwithstanding whether those claims would have been established. 


CONCLUSION OF LAW

The claim for accrued benefits is denied.  See 38 U.S.C.§ 5121 (2102); 38 C.F.R. §§ 3.1000(a), 3.31(a) (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The instant appeal is for accrued benefits.  Under VA law, upon the death of an individual receiving benefit payments on or after December 16, 2003, eligible persons shall be paid periodic monetary benefits to which that individual was entitled at the time of death under existing ratings or decisions, or those based on evidence in the file at date of death, and due and unpaid.  See 38 U.S.C. § 5121  (2012); 38 C.F.R. § 3.1000 (a) (2017).  An application for accrued benefits must be filed within one year after the date of the veteran's death. 38 U.S.C. § 5121(c); 38 C.F.R. § 3.1000(c).  

By filing of June 2013, the Veteran requested that the Regional Office adjudicate and decide the following claims:  petition to reopen a previously denied claim for service connection for renal cell carcinoma; petition to reopen a previously denied claim for service connection for lung cancer; and original claims of entitlement to service connection for diabetes, mental condition, and high blood pressure.  

As indicated by medical records, the Veteran passed away at the end of June 2013.  

In a separate RO rating decision, service connection for cause of death was already granted, leaving the instant claim for accrued benefits.

Whereas there were clearly claims pending at the time of the Veteran's death, and therefore technically available for accrued benefits consideration, provided any of them were medically substantiated and granted, the earliest date of compensation entitlement would be the first date of the next month.  

Generally, the payment of monetary benefits based on original, reopened, or increased awards of compensation, pension, dependency and indemnity compensation, or a monetary allowance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam veteran or a child of a veteran with covered service in Korea may not be made for any period prior to the first day of the calendar month following the month in which the award became effective.  
See 38 C.F.R. § 3.31(a).

Accrued benefits entitlement is limited to benefits due at time of death.  Given the timing of filing of the June 2013 compensation claims, there is not a defined period within which monetary benefits are payable up until the date the death occurred.   

The applicable law governing accrued benefits entitlement is clear and determinative on this issue.  See 38 U.S.C.A. § 7104(c).   

Accordingly, this claim is being denied.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law).


ORDER

The claim for accrued benefits is denied.



____________________________________________
D. Martz Ames
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs