Citation Nr: 18147150 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 15-14 633A DATE: November 2, 2018 ORDER Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. The Veteran died in 2000 and his surviving spouse died in September 2012. 2. The appellant, who is not a “child” for accrued benefits purposes, is the daughter of the Veteran and the Veteran’s surviving spouse. She filed a claim for accrued benefits in January 2013. 3. The Veteran’s surviving spouse was in receipt of death pension with aid and attendance at the time of her death. She had no claims pending with the VA at the time of her death and there were no unpaid VA benefits due at the time of her death. CONCLUSION OF LAW The requirements for payment of accrued benefits are not met. 38 U.S.C. §§ 5112, 5121 (2012); 38 C.F.R. §§ 3.500(g), 3.1000 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 1. Entitlement to accrued benefits The appellant seeks entitlement to accrued benefits owed to her mother, the Veteran’s surviving spouse, at the time of her death. The law provides for payment of certain accrued benefits upon death of a beneficiary. 38 U.S.C. § 5121 (2012). Periodic monetary benefits under laws administered by the Secretary to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death and due and unpaid, shall, upon the death of a beneficiary, be paid to the living person first listed below: (A) the veteran’s spouse; (B) the veteran’s children (in equal shares); (C) the veteran’s dependent parents (in equal shares). 38 U.S.C. § 5121(a), 5121(a)(2) (2012); 38 C.F.R. § 3.1000(a) (2017). In all other cases, only so much of the accrued benefits may be paid as may be necessary to reimburse the person who bore the expense of last sickness and burial. 38 U.S.C. § 5121(a)(6) (2012). To qualify as a “child” for accrued benefits purposes, a person must be a child of the Veteran who is unmarried and (1) under the age of 18; or (2) became permanently incapable of self-support before the age of 18; or (3) under the age of 23 and pursuing a course of instruction at an approved educational institution. See also 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.57(a). Here, the record shows that the appellant is over the age of 23 and there is no assertion or indication that she became permanently incapable of self-support before the age of 18. Thus, she does not meet the definition of child for accrued benefits purposes, and she is not eligible for benefits in that capacity. Rather, the appellant has contended that she paid the surviving spouse’s expenses of last sickness and burial. At the time of her death the surviving spouse was in receipt of widow’s pension and aid and attendance benefits. She had filed a notice of disagreement with the VA’s competency finding prior to her death, but had no pending claims for additional compensation at the time of her death. The record reflects that she was mailed a pension check dated August 1, 2012. She was subsequently sent her September check on August 31, 2012. That check was correctly returned to the VA by the appellant. See 38 U.S.C. §§ 5121, 5122, Wilkes v. Principi, 16 Vet. App. 237, 242-43 (2002). A check dated October 1, 2012 was correctly canceled by the VA. The controlling law and regulations provide that the effective date of discontinuance of the pension benefits that the payee was receiving is the last day of the month before death. 38 U.S.C. § 5112(b)(1) (2012); 38 C.F.R. § 3.500(g) (2017). The surviving spouse died on September [redacted], 2012. Accordingly, the effective date for the discontinuance of her pension benefits was August 31, 2012, the last day of the month before her death. As the surviving spouse had no valid pending claim at the time of her death nor were there any benefits owed her but unpaid at the time of her death, there is no entitlement to any unpaid benefits because the benefits do not exist to be paid. Therefore, whether the appellant paid the surviving spouse’s burial expenses or not, the Board must deny the claim as there are no existing accrued benefits. The law is dispositive of the issue on appeal, and the appellant’s claim must be denied because of the absence of legal merit or entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Based on the undisputed facts of this case, the appellant is not entitled to accrued benefits. 38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000 (2017). Although the Board acknowledges the appellant’s contentions and is sympathetic toward the appellant, it is bound by the law, and this decision is dictated by the relevant statutes and regulations. The Board is without authority to grant benefits simply because it might perceive the result to be equitable. 38 U.S.C. §§ 503, 7104 (2012); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board further observes that “no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress.” Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Christensen