Citation Nr: 18144948 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 18-01 792 DATE: October 25, 2018 ORDER Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. The Veteran died in March 2012. 2. The Veteran had no valid claims for VA benefits pending at the time of his death. CONCLUSION OF LAW The appellant has no legal entitlement to accrued benefits. 38 U.S.C. §§ 101, 5121; 38 C.F.R. §§ 3.57, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the United States Army from May 1969 to November 1970. He died in March 2012. The appellant is his son. 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). Only evidence contained in the claims file at the time of the Veteran’s death will be considered when reviewing a claim for accrued benefits. 1. Entitlement to accrued benefits The appellant contends that the Veteran was entitled to service connection for lung cancer, as due to Agent Orange exposure and he is therefore entitled to accrued benefits. However, while the appellant called the VA in August 2012 to request a new claim to be opened for Agent Orange exposure, a review of the evidence shows there was no pending claim at the time of the Veteran’s death in March 2012. The Veteran filed multiple claims during his lifetime, including service connection for posttraumatic stress syndrome and diabetes mellitus, type II. However, a review of the record provides no evidence of an intent to file a claim in regard to service connection for lung cancer, as due to Agent Orange exposure. The Board acknowledges the appellants statement that due to health reasons the Veteran was unable to file a claim for service connection for lung cancer due to Agent Orange exposure. However, because the Veteran did not have any type of claim pending at the time of his death, there are no possible accrued benefits that could be paid to the appellant. See Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998). In sum, the appellant has no legal basis for entitlement to accrued benefits because there was no pending claim at the time of the Veteran’s death on which the appellant’s accrued benefits claim could be based. 38 U.S.C. § 5121(a) and 38 C.F.R. § 3.1000. Although cognizant that the RO did not specifically develop the question of whether the appellant sought substitution, as development under these regulations would require a pending claim, the Board finds that it need not further address this aspect of the claim. See generally 38 C.F.R. § 3.1010.   While the Board is sympathetic to the appellant’s contentions and grateful for the Veteran’s service, it is without legal authority to grant his claim. As the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Vample, Associate Counsel