Citation Nr: 18147609 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 17-54 820 DATE: November 6, 2018 ORDER Entitlement to an increased rate of Dependency and Indemnity Compensation (DIC) benefits is denied. REMANDED The propriety of the withholding of $3,907.00 in accrued benefits as recoupment of the month-of-death payment is remanded. FINDING OF FACT The appellant is in receipt of the maximum statutory rate of DIC benefits allowable for a helpless child of a deceased veteran with no surviving spouse. CONCLUSION OF LAW There is no legal entitlement to an increased rate of DIC benefits. 38 U.S.C. §§ 1452, 5312; 38 C.F.R. §§ 3.24(b), 3.57(d). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from March 1953 to January 1955; he passed away in September 2012. The appellant is his surviving son. The appellant seeks an increased rate of DIC benefits due to the severity of his medical disabilities and financial difficulties. DIC benefits are payable to the surviving children of a Veteran if the Veteran died from a service-connected disability. In cases where there is no personal custodian, i.e., there is no person who has the legal right to exercise parental control and responsibility for the child’s welfare, pension shall be paid to the child at the annual rate specified in 38 U.S.C. § 1542, as increased from time to time, reduced by the amount of the child’s countable income. Effective December 1, 2017, if there is no surviving spouse or other children of the Veteran also entitled to DIC benefits, a base amount of $541.76 is payable. For a helpless child over the age of 18, an additional amount of $317.87 is added to the base amount. Therefore, the total amount payable in this case is $859.63. The record demonstrates that the appellant is in receipt of monthly benefits of $859.63. The appellant is in receipt of the maximum DIC benefits available for a helpless child of a veteran with no surviving spouse or other children. There is no statutory or regulatory provision that would provide for a higher rate of DIC benefits. Therefore, the disposition of this appeal is based on interpretation of the law, and not the facts of the case, and the appellant’s claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND On October 1, 2012, VA issued a payment to the Veteran in the amount of $3,907.00 before being notified that he had passed away in September 2012. In March 2013, the Regional Office (RO) issued a decision awarding the appellant accrued benefits of $24,583.00. This decision also notified the appellant that the October 1, 2012, “month of death” payment would be withheld from this amount, as these funds were not returned to VA. However, the appellant asserts that his bank did return $3,584.24 of the month of death payment to VA in January 2013. Essentially, the appellant contends VA should have withheld only $322.76, and the remaining amount should be returned. In support of his claim, the appellant has submitted a January 2013 bank statement indicating a balance of $3,584.24 as of January 3, 2013. He has also submitted a hand-written debit slip from Simmons First National Bank, indicating his account had been charged $3,584.24 to return the October 2012 VA direct deposit for the Veteran. However, to date, the Veteran has not provided a bank statement indicating these funds were returned to VA. The record indicates the RO requested confirmation from the Hines, Illinois, Data Processing Center (HINES) that the month of death payment was returned to VA. A September 2017 email suggests that HINES confirmed the October 2012 month of death payment was never returned to VA. However, a copy of the response from HINES has not been associated with the claims file. As such, the Board finds that a remand is necessary to obtain this response and to assist the appellant in providing the banking documents necessary to establish these funds were returned to VA in January 2013. The matter is REMANDED for the following action: 1. Obtain and associate with the claims file the HINES audit response obtained by the RO in approximately September 2017. If this document cannot be located, appropriate efforts must be undertaken to request an additional audit to verify if funds were returned to VA by the appellant’s bank in January 2013. 2. With the assistance from the appellant as necessary, contact the Simmons First National Bank and request verification, including but not limited to a February 2013 statement of the appellant’s bank account, that funds in the amount of $3,584.24 were returned to VA in January 2013. 3. After completing the above, and any other development deemed necessary, readjudicate the appellant’s claim based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher Murray, Counsel