Citation Nr: 18140245
Decision Date: 10/02/18	Archive Date: 10/02/18

DOCKET NO. 14-40 258A
DATE:	October 2, 2018
ORDER
Entitlement to accrued benefits is denied.
FINDING OF FACT
The Appellant filed his initial accrued benefits claim more than one year after the Veteran’s death.
CONCLUSION OF LAW
The criteria for entitlement to accrued benefits have not been met.  38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, that denied the Appellant’s claim for any accrued benefits that may have been due and unpaid to his father, the Veteran, at the time of his death in March 2010.
The Board notes the Appellant requested a Board hearing at the local RO in his December 2014 substantive appeal (VA Form 9).  A hearing was scheduled at the RO in Montgomery, Alabama, on May 28, 2017, but the Appellant failed to attend.  The record reflects two notice letters with the hearing date, time, and location were mailed to the Appellant’s last known address prior to the hearing date.  The Appellant has not provided an explanation for his absence or requested a rescheduled hearing.  Thus, his hearing request is deemed withdrawn.  See 38 C.F.R. § 20.704(d).
Accrued benefits are periodic monetary benefits to which a Veteran was entitled at the time of death, and which were due and unpaid, based on existing rating decisions or other evidence that was on file when the Veteran died.  38 U.S.C. § 5121; 38 C.F.R. § 3.1000.  A survivor who is a member of one of the statutorily enumerated categories of recipients in 38 U.S.C. § 5121 may be paid accrued benefits, but his or her application for accrued benefits must be filed within one year of the Veteran’s death.  38 U.S.C. §§ 5121(c); 38 C.F.R. § 3.1000(c).
Here, the Appellant filed his initial accrued benefits claim on December 23, 2013, which is more than three years after the Veteran’s death.  Since Congress has established a one-year filing requirement for accrued benefit claims under 38 U.S.C. § 5121, the Appellant’s claim is barred as a matter of law.  See Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992), citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990) (“No equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress.”).
The Board acknowledges the Appellant’s assertion that he was not aware of the one-year filing requirement and erroneously believed any VA benefits available would be handled by his local probate court.  While sympathetic to his situation, the Board notes the Court of Appeals for Veterans Claims has held lack of knowledge is not a legally sufficient reason to waive a one-year filing requirement established by Congress.  See Morris v. Derwinski, 1 Vet. App. 260, 265 (1991).  Thus, the law remains dispositive in this case, and the Appellant’s claim must be denied.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
 
M. HYLAND
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	L. S. Kyle, Counsel