Citation Nr: 18143292 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 18-28 234 DATE: October 18, 2018 ORDER Entitlement to accrued benefits as a “month of death” payment, but no others, is granted, subject to the laws that govern the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran died in February 2017. 2. The Appellant is the Veteran’s surviving spouse, as verified by the submitted February 1954 marriage certificate and confirmation of marriage at the time of the Veteran’s death in February 2017. 3. Prior to the Veteran’s death, the Veteran was in receipt of monthly compensation benefits. 4. As the surviving spouse of the Veteran, the Appellant is entitled to a month of death entitlement. 5. At the time of his death, VA did not owe any other compensation to the Veteran, and there were no other claims or appeals pending. CONCLUSIONS OF LAW 1. The criteria for entitlement to a “month of death” payment have been met. 38 U.S.C. §§ 5112, 5310; 38 C.F.R. § 3.20. 2. The criteria for entitlement to any other accrued benefits have not been met. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1946 to April 1947; he died in February 2017. The Appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2018 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Appellant, who is the Veteran’s surviving spouse, as verified by the submitted February 1954 marriage certificate and confirmation of marriage at the time of the Veteran’s death in February 2017, seeks entitlement to accrued benefits, and more specifically, to a “month of death” payment. Accrued benefits are those benefits to which an individual was entitled at the time of death under an existing rating or based on evidence in the file at the date of death. See 38 U.S.C. § 5121 (a); 38 C.F.R. § 3.1000 (a). Upon the death of a veteran, benefits may be paid to the surviving spouse of the veteran. 38 U.S.C. § 5121 (a) (3); 38 C.F.R. § 3.1000 (a)(1)(i)). For a claimant to prevail in his or her accrued benefits claim, the record must show the following: (1) the Appellant has standing to file a claim for accrued benefits; (2) the Veteran had a claim pending at the time of his or her death; (3) the Veteran would have prevailed on his or her claim if he or she had not died; and (4) the claim for accrued benefits was filed within one year of the Veteran’s death. The Appellant has been shown to have standing in this matter, as she is shown to be the surviving spouse of the Veteran and filed the claim within one year of the Veteran’s death. As for claims pending at the time of the Veteran’s death, the Appellant has brought the issue of entitlement to a month of death payment, on which a surviving spouse could prevail because of the Veteran’s death. The effective date of a discontinuance of pension by reason of death of a payee shall be the last day of the month before such death occurs. 38 U.S.C. § 5112 (b)(1). An exception is available under 38 U.S.C. § 5310 which provides that a surviving spouse of a veteran is entitled to a one-time benefit for the month of the Veteran’s death if at the time of the Veteran’s death, the Veteran was receiving VA compensation or pension, i.e. a “month of death” payment. See 38 C.F.R. § 3.20 (b) (2017). The “month of death” payment, however, is available only to the surviving spouse of a Veteran. In other words, the “month of death” payment is only available upon the death of a Veteran and not available to anyone other than the surviving spouse of the Veteran. Here, the Appellant is shown to be the surviving spouse of the Veteran. At the time of the Veteran’s death, the Veteran was in receipt of monthly compensation benefits. There is no indication that that Appellant has received a month of death payment, as the last payment recorded for the Veteran is February 1, 2017, before his death. Therefore, entitlement to a month of death payment for the Appellant is warranted. In regard to any other accrued benefits, a review of the claims file does not show that the Veteran had any other claims or appeals pending or any further monies due. While it is noted that the Veteran had filed a July 2016 notice of disagreement (NOD) to a June 2016 rating decision, for which he received an August 2016 statement of the case (SOC), there is no indication that the Veteran ever perfected an appeal to this decision. As such, all appeals and decisions had been completed at the time of the Veteran’s death. Therefore, the criteria for entitlement to any other accrued benefits have not been met. There is no legal basis demonstrated to pay this claim. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Here, the Board is bound by the laws passed by Congress. No equities, no matter how compelling, can create a right to payment that has not been provided for by law. See Smith v. Derwinski, 2 Vet. App. 429 (1992). In sum, the legal authority governing this claim is clear and specific, and the Board is bound by such authority. The law is dispositive, and the claim for any other accrued benefits must be denied as a matter of law. See Sabonis, 6 Vet. App. at 430. J. CONNOLLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Dodd, Counsel