Citation Nr: 18144864
Decision Date: 10/25/18	Archive Date: 10/25/18

DOCKET NO. 16-25 338
DATE:	October 25, 2018
ORDER
Entitlement to benefits in an amount equal to the Veteran's rate of payment of VA compensation for the month of his death under 38 U.S.C. § 5310 is granted. 
FINDING OF FACT
At the time of his death in February 2010, the Veteran was in receipt of VA compensation for a 100 percent rating for lung cancer. 
CONCLUSION OF LAW
The criteria for entitlement to payment of the Veteran’s month of death payment have been met.  38 U.S.C. §§ 5107, 5310(b). 
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from January 1958 to January 1962.  He died in February 2010, and the appellant is his surviving spouse.  
As the time of his death on February 2010, the Veteran had an extant claim seeking service connection for lung cancer.  In June 2010, the appellant submitted a claim for service connection for the cause of the Veteran’s death as well as a request for substitution to continue the Veteran’s lung cancer appeal.  The Board ultimately granted service connection for lung cancer in a February 2014 decision.  Following that decision, the RO promulgated its own decision dated in April 2014 wherein it awarded the appellant accrued benefits for the substituted service connection claim for lung cancer and also awarded dependency and indemnity benefits for the cause of the Veteran’s death.  The accrued benefits were made effective July 7, 2007, with payment to begin August 1, 2007, the first day of the month following the month of the effective date, and ending January 31, 2010, the last day of the month preceding the month that the Veteran died.  The dependency and indemnity benefits were made effective March 1, 2010, the first day of the month following the month that the Veteran died.  The appellant seeks entitlement to a one-time payment for the month of February 2010, the month that the Veteran died, pursuant to 38 U.S.C. § 5310. 
To begin, VA compensation payable to a veteran ends on the last day of the month before the veteran’s death.  See 38 U.S.C. § 5112 (b)(1); see also Pelea v. Nicholson, 497 F.3d 1290, 1291 (Fed. Cir. 2007).  However, 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.  See also 38 C.F.R. § 3.20(b).  Here, the appellant was substituted in the place of the Veteran for the purposes of pursuing the extant claim of service connection for lung cancer.  The RO’s April 2014 decision established that the Veteran should have been receiving benefits for the service-connected lung cancer at the time of his death.  
Accordingly, the Board finds that the appellant as a substitute for the Veteran was receiving VA compensation at the time of the Veteran’s death, and, therefore, the appellant, as the surviving spouse, is entitled to a one-time benefit for February 2010 equal to the amount the Veteran would have received for the service-connected lung cancer but for his death.  To this extent, the claim is granted.

 
A. C. MACKENZIE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. Collins, Associate Counsel