Citation Nr: 18141525 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 15-14 007 DATE: October 10, 2018 ORDER Entitlement to accrued benefits is denied. FINDINGS OF FACT 1.The Veteran died in January 2014. The appellant is his adult daughter. 2.The appellant is neither a “child” for accrued benefits purposes, nor “the person who bore the expense of last sickness.” CONCLUSION OF LAW The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. § 5121 (2014); 38 C.F.R. § 3.1000 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from October 1957 to December 1961. He died in January 2014. The appellant is his adult daughter. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 determination issued by the Department of Veterans Affairs (VA) Regional Office (RO) located in Philadelphia, Pennsylvania. In the appellant’s April 2015 substantive appeal (VA Form 9), she requested a Board hearing, which was subsequently scheduled in February 2018. Although the appellant was duly notified of the time and date of the hearing, she failed to report and neither furnished an explanation for her failure to appear nor requested a postponement or another hearing. Pursuant to 38 C.F.R. § 20.702(d) (2016), when an appellant fails to appear for a scheduled hearing and has not requested a postponement, the case will be processed as though the request for a hearing had been withdrawn. Thus, the Board will proceed with consideration of the appeal based on the evidence of record. The Board observes that in October 2015, the Veteran’s former spouse, E. S. submitted a VA Form 21-9066 Intent to File a Claim for Compensation. Additionally, in correspondence dated in February 2018 and April 2018, E. S. was scheduled for a Board hearing. In September 2018, an appellant brief was submitted on behalf E.S. for an accrued benefits claim. However, E. S. does not currently have a claim before the Board. Thus, such claim will not be addressed herein. 1. Entitlement to accrued benefits Periodic monetary benefits to which a veteran was entitled at death, either by reason of existing VA ratings or decisions or those based on evidence in the file at date of death, and due and unpaid, are known as “accrued benefits.” 38 U.S.C. 5121; 38 C.F.R. 3.1000; see also Zevalkink v. Brown, 102 F.3d 1236 (Fed Cir. 1996). 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 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. 5121, 5101(a); 38 C.F.R. 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). Following timely filing of a proper claim, such benefits will be paid according to a statutorily prescribed order of distribution. Essentially, accrued benefits are paid as follows: (i) to the veteran’s spouse; (ii) his or her children (in equal shares); or (iii) his or her dependent parents (in equal shares) or the surviving parent. 38 U.S.C. 5121 (a)(2); 38 C.F.R. 3.1000(a)(1). In all other cases, only so much of the accrued benefit may be paid as may be necessary to reimburse the person who bore the expense of last sickness or burial. 38 U.S.C. 5121(a)(6); 38 C.F.R. 3.1000(a)(5). The term “child” is defined, for purposes of veterans’ 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); 38 C.F.R. § 3.57. Analysis The appellant asserts that accrued benefits should be awarded. In the appellant’s substantive appeal, she indicated that the Veteran’s former spouse E. S. is entitled to accrued benefits as the Veteran’s surviving spouse. She also asserted that one of the Veteran’s surviving children, M.S., is entitled to accrued benefits as she became permanently incapable of self-support before reaching the age of 18. The appellant reported that the Veteran had a pending claim at the time of his death. After a review of the evidence, the Board finds that the appellant is not entitled to accrued benefits. In order to be eligible for accrued benefits, the claimant must qualify as a member of one of the statutorily enumerated categories of recipients. In this case, the appellant has not met the threshold requirement of establishing standing to receive accrued benefits. The Board acknowledges that the appellant is the child of the Veteran. However, she does not qualify as a “child” who can receive accrued benefits, pursuant to 38 C.F.R. §§ 3.57. In the appellant’s claim for accrued benefits received in April 2014, she indicated that she was born in April 1960. Thus, she is beyond the age of 23, and the record contains no indication, nor does the appellant contend, that she became permanently incapable of self-support before reaching the age of 18. Thus, the appellant does not meet the legal definition of a child of the Veteran. Additionally, neither the evidence nor the appellant suggests that she meets the legal criteria which could confer standing to receive accrued benefits. The Board observes that the appellant indicated that the Veteran’s former spouse E. S. and surviving child, M.S. are entitled to accrued benefits. However, there are no claims for benefits for E.S. or M.S. currently before the Board. The Board also finds that the appellant is not entitled to accrued benefits as the person who bore the expense of the last sickness or burial of the Veteran. 38 U.S.C. § 5121(a)(6); 38 C.F.R. § 3.1000(a)(5). In this regard, the appellant has not provided any evidence, nor has she contended, that she paid for the cost of the Veteran’s last illness, funeral, or burial.   In sum, the appellant has not established standing to receive any accrued benefits due the Veteran at the time of his death, either as a “child” of the Veteran or as reimbursement for expenses related to the Veteran’s last illness, funeral, or burial. Thus, the appeal must be denied. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Jones, Counsel