Citation Nr: 18144589 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 15-09 695 DATE: October 25, 2018 ORDER Entitlement to accrued benefits is denied. FINDING OF FACT The appellant is not a dependent child of the Veteran’s surviving spouse and the evidence fails to demonstrate that she paid any of the surviving spouse’s expenses of last sickness or burial. CONCLUSION OF LAW The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. § 5121; 38 C.F.R. 3.57, § 3.1000. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active military service with the U.S. Army from April 1943 to November 1945 and with the U.S. Air Force from June 1947 to June 1953. The Veteran died in February 2012 prior to his spouse. This appeal arises out of his surviving spouse’s claim for VA death pension with aid and attendance allowance that was pending at the time of her death in May 2013. The appellant is the adult daughter of the Veteran and his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 administrative decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that, in her VA Form 9, the appellant requested a Travel Board hearing before a Veterans Law Judge. A hearing was scheduled in August 2018. However, the RO has indicated that the appellant cancelled that hearing without requesting it be rescheduled. Therefore, the Board finds it has no further duty to afford the appellant an opportunity for a hearing, and it may proceed to adjudicate her claim without prejudice to her. Entitlement to accrued benefits. The appellant is seeking accrued benefits to recoup the benefits to which she believes her mother, the Veteran’s surviving spouse, was entitled based upon the application for VA death benefits with aid and attendance allowance that was approved at the time of her death in May 2013. In fact, she states that a payment was made to her mother’s account, but that it was reclaimed after VA learned of her death later that month. Periodic monetary benefits (other than insurance and servicemembers’ indemnity) authorized under laws administered by the VA, to which a payee was entitled at his or her death under existing ratings or decisions or those based on evidence in the file at date of death, and due and unpaid will, upon the death of such person, be paid as follows: (1) Upon the death of a veteran to the living person first listed as follows: (i) His or her spouse; (ii) His or her children (in equal shares); (iii) His or her dependent parents (in equal shares) or the surviving parent. (2) Upon the death of a surviving spouse or remarried surviving spouse, to the veteran’s children. (3) Upon the death of a child, to the surviving children of the veteran entitled to death pension, compensation, or dependency and indemnity compensation. (4) Upon the death of a child claiming benefits under chapter 18 of this title, to the surviving parents. (5) 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 C.F.R. § 3.1000. In the present case, subsection (a)(2) is controlling, which provides that, upon death of the surviving spouse, the Veteran’s children will be paid. The definition of the word “child” is set forth further down in subsection (d)(2) of 38 C.F.R. § 3.1000. That subsection states that the word “child” is “as defined in §3.57 and includes an unmarried child who became permanently incapable of self-support prior to attaining 18 years of age as well as an unmarried child over the age of 18 but not over 23 years of age, who was pursuing a course of instruction within the meaning of §3.57 at the time of the payee’s death.” Section 3.57 generally defines a “child” as one who is under the age of 18 years; who, before reaching the age of 18 years, became permanently incapable of self-support; or who is over the age of 18 (but not yet 23 years old) and is pursuing a course of instruction at an educational institution approved by VA. 38 C.F.R. § 3.57(a)(1). In this case, the appellant is an adult child of the Veteran. However, she does not contend that she meets the criteria set forth in the definitions of “child” in 38 C.F.R. §§ 3.57 and 3.1000(d)(2). In other words, she has not shown that she was below the age of 18, between the ages of 18 and 23 but in an educational program, or was a helpless child (became permanently incapable of self-support prior to reaching the age of 18), at the time of the death of the Veteran’s surviving spouse (her mother). Rather, the evidence merely shows that she was born in March 1960. Given the Veteran’s surviving spouse died in May 2013, it is clear to the Board that the appellant was well over the age of 18 (as well as 23) at the time of her mother’s death. As such, she not a “child” within the construct of the regulation which contemplates dependent children. Moreover, she has not claimed, nor is there evidence to show, she was a helpless child of the Veteran prior to attaining the age of 18. Thus, the only means upon which the appellant would have standing as an accrued benefit claimant is by showing she paid the expenses of last sickness or burial of the surviving spouse. However, the appellant has not made such a claim. She has merely submitted additional medical expenses for her mother in an apparent attempt to further establish her mother’s entitlement to VA death pension benefits, which is not at question as such was already been established. As the appellant has submitted no evidence to show she paid the surviving spouse’s expenses of last sickness or burial, the Board has no choice but to find that the appellant did not bear such expenses and, therefore, find that payment of accrued benefits is not warranted on that basis. The Board acknowledges the appellant’s contentions and concerns about the fact that her mother was seeking benefits and that she was in fact paid her first month of benefits in May 2013 but, having died that same month, VA reclaimed those benefits. Unfortunately, such action is appropriate by law. Upon a payee’s death, the effective date of discontinuance of the payee’s award is the last day of the month before death. 38 C.F.R. § 3.500(g)(1). In the present case, although initially finding the Veteran’s surviving spouse had basic eligibility for VA death pension with an additional allowance for aid and attendance effective February 1, 2012 (see February 2013 rating decision), the RO denied entitlement to payment of VA death pension benefits based upon the surviving spouse having excessive income. Subsequently additional evidence as to her medical expenses was provided and, in an April 2013 administrative decision, the RO awarded VA death pension benefits effective March 1, 2012 but then terminated them again April 1, 2012 based on excessive income until May 2013. On May 1, 2013, the RO reopened the surviving spouse’s claim and awarded VA death pension in the amount of $1,113.00. Unfortunately, she died before the end of that month. According to § 3.500(g)(1), the effective date of the discontinuance of her benefit would, therefore, be April 30, 2013, the last day of the month before her death. Consequently, the surviving spouse’s death occurring in the same month as her entitlement to benefits arose essentially cancelled out her right to payment of VA death pension benefits that month. In addition, the month-of-death check benefit set forth in 38 U.S.C. § 5310(b)(1) is not applicable in this case because that only applies to cases in which a veteran dies with a surviving spouse who is entitled to receive a benefit for the month of the veteran’s death. Finally, as a matter of law, claims do not survive a claimant’s deaths. Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994). Therefore, the surviving spouse’s claim for VA death pension benefits, and her entitlement to payment thereof, died with her. Upon her death, any VA benefits that were due to her, but not paid, do not become part of her estate to be inherited by her heirs. Instead, VA law limits those who are eligible to receive such funds to essentially those who were dependent upon the payee at the time of death. See 38 C.F.R. § 3.1000. As the appellant is an adult child of the Veteran’s surviving spouse, she does not meet the definition of “child” in the regulation and, therefore, entitlement to accrued benefits other than reimbursement of final expenses is not warranted as a matter of law. Moreover, she has not submitted argument or evidence to establish entitlement to accrued benefits based on reimbursement of final expenses. Although the Board is sympathetic to the appellant at the death of her mother, the law is controlling in this case and prohibits payment of accrued benefits to anyone but a payee’s dependents with the one exception as discussed. The Board is bound by the laws and regulations applicable to the benefit sought. See 38 C.F.R. § 19.5. As the law is dispositive, the appellant’s claim must be denied because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.M. Kreitlow