Citation Nr: 18144725 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 14-39 925 DATE: October 25, 2018 ORDER Entitlement to accrued benefits is denied. FINDING OF FACT At the time of the Veteran’s death, he was not entitled to any benefits which were due and unpaid. CONCLUSION OF LAW The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000 (a). REASONS AND BASES FOR FINDING AND CONCLUSION Entitlement to accrued benefits Upon the death of an individual receiving VA benefit payments, certain persons shall be paid periodic monetary benefits to which the deceased beneficiary 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; 38 C.F.R. § 3.1000 (a). Accrued benefits to which a payee was entitled at his or her death under existing ratings or decisions, or those based on evidence in file at the date of death, 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. See 38 C.F.R. § 3.1000 (a). For purposes of determining eligibility for payment, a “child” of the veteran must be unmarried and must be either under the age of 18, have become permanently incapable of self-support before the age of 18, or be between the ages of 18 and 23 and pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101(4)(A)(ii); 38 C.F.R. §§ 3.57(a)(1), 3.1000(d)(2). Accrued VA benefits are only paid to certain recipients rather than to the payee’s estate. In all other cases, only so much of the accrued benefit may be paid as necessary to reimburse the person who bore the expense of the last sickness and burial. See 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. The appellant is the Veteran’s adult daughter. She is not shown to be a “child’ of the Veteran within the meaning of 38 C.F.R. §§ 3.57. Thus, accrued benefits may only be paid as necessary to reimburse any expenses she paid for the Veteran’s last sickness and burial. The appellants contends that she is entitled to benefits for the Veteran’s month of death as an accrued benefit. She contends that checks which had been direct deposited into the Veteran’s account and were taken back by the VA when they learned of his death. The checks taken back were for the months of July and August. She contends that because the Veteran lived for most of July, the check for that month would have covered his living expenses for that month. The Board finds that at the time of the Veteran’s death, he was not entitled to any benefits which were due and unpaid. The record shows that the Veteran died on July [redacted], 2012. VA compensation, payable to a veteran, ends on the “last day of the month before death.” 38 U.S.C. § 5112 (b)(1);38 C.F.R. § 3.500(g); see also Pelea v. Nicholson, 497 F.3d 1290, 1291 (Fed. Cir. 2007). Thus, benefits were terminated effective July 1, 2012, with his last payment being issued for the month of June. Accordingly, there were no benefits which were due an unpaid at the time of the Veteran’s death. The Board notes that under 38 U.S.C. § 5310, 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, i.e. a month of death check. 38 C.F.R. § 3.20 (b) (2018). This benefit, however, is available only to a surviving spouse, and is not payable to the Veteran’s estate. While the Board is sympathetic to the appellant's arguments, it is bound by the applicable law and regulations. See 38 U.S.C. § 7104 (c). Under these circumstances, the Board must find that there is no legal basis for granting the appeal. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christine C. Kung, Counsel