Citation Nr: 18150632 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 11-27 575 DATE: November 15, 2018 ORDER Entitlement to accrued benefits is denied. FINDING OF FACT The Appellant’s claim for accrued benefits was received more than one year after the Veteran’s death. CONCLUSION OF LAW The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who served on active duty from February 1943 to January 1946, died in September 2008. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2010 decision of the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board denied the Appellant’s claim in April 2014. The Appellant appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court) and in a June 2015 decision the Court, pursuant to a Joint Motion for Remand (JMR), vacated the Board’s April 2014 decision and remanded the matter to the Board for action consistent with the Court’s order. The Board then remanded the case to the RO for additional development pursuant to the directives of the JMR in January 2016. The Board notes that during the Veteran’s lifetime, in a January 2008 rating decision, the Veteran was granted entitlement to nonservice-connected pension benefits and entitlement to special monthly pension based on the need for aid and attendance from November 13, 2007. In that rating decision, a finding of incompetency was proposed. The Veteran was notified in March 2008 of these actions. The RO withheld his funds due to the proposed incompetency. Correspondence was received from the Veteran in which he indicated that he agreed with the proposed incompetency status and wanted the Appellant to be his appointed fiduciary. In a June 2008 rating decision, the RO determined that the Veteran was incompetent. Thereafter, in September 2008, the Veteran was notified of this determination, but he had already died. When he died, the Veteran was due pension/aid and attendance benefits that had not been paid to him. Section 5121 of title 38, United States Code, provides for payment of certain accrued benefits upon death of a beneficiary. 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 veteran, 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); 38 C.F.R. § 3.1000(a). 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. Id. The Appellant has standing in this case as a proper appellant because she bore the expense of last sickness and burial. For a survivor to be entitled to accrued benefits, the Veteran must have had a claim pending at the time of his death or have been entitled to benefits, accrued and unpaid, under an existing rating or decision. Jones v. West, 136 F.3d. 1296, 1299 (Fed. Cir. 1998). The United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that “a consequence of the derivative nature of the surviving spouse’s entitlement to the Veteran’s accrued benefits claim is that, without the Veteran having a claim pending at time of death, the surviving spouse has no claim upon which to derive his or her own application.” Id. at 1300. The Board notes that Congress amended 38 U.S.C. § 5121 to repeal a two-year limit on accrued benefits so that a veteran’s survivor may receive the full amount of award for accrued benefits. This change applies only to deaths occurring on or after the date of enactment, December 16, 2003, as is the case here. See Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 104, 117 Stat. 2651 (Dec. 16, 2003), codified at 38 U.S.C. § 5121(a). Applications for accrued benefits must be filed within one year after the date of death. See 38 U.S.C. § 5121(c); 38 C.F.R. § 3.1000(c). In this case, the Appellant’s claims for both burial benefits (via a VA Form 21-530) and accrued benefits (via a VA Form 21-601) were received in January 2010. At her hearing, the Appellant testified that she submitted a claim for benefits in November 2008, after the Veteran’s death. The Veteran and her representative indicated that even though her claim might have been incomplete, it should have been considered an informal claim and a duty to assist letter should have been issued to her. In an April 2014 decision, the Board found that the record does not contain evidence that the VA Form 21-530 or VA Form 21-601 were mailed by the Appellant on or about November 2008 or any other time within one year of the Veteran’s death. Although there is a handwritten date by the Appellant on one form, there is no postmarked envelope or other information that suggests the document was mailed earlier than just prior to the January 2010 date of receipt. When the RO received those forms in January 2010, the RO acted on them. Because this evidence establishes neither that the RO received the VA forms prior to January 2010, nor that the Appellant mailed the VA forms at an earlier date, the Board concluded that the claim for accrued benefits submitted by the Appellant was not timely because it was received more than one year after the Veteran’s death. As noted, the Appellant appealed to the Court. The above-referenced JMR noted that A “Change of Address” computer printout dated August 28, 2008, reflected that payments for the Veteran should be directed “c[are] o[f] [the Appellant]” and notes the “Fiduciary File Location” was “328,” apparently reflecting the Chicago RO which had control over the Veteran’s fiduciary file. It was further noted that the record contains a form titled “Request for Appointment of a Fiduciary, Custodian or Guardian,” dated September 24, 2008, indicating that the RO had begun the process of appointing a guardian for the Veteran and that the “amount of benefits entitled to but unpaid to date” was $12,432. The JMR noted that the record contains no further documentation pertaining to the guardianship proceedings. On January 19, 2010, the RO stamped as “received” the Appellant’s application for accrued benefits. In said application, the Appellant indicated that the Veteran had died in September 2008. The JMR further noted that the Appellant testified before the Board in July 2013 and it had been indicated that a VA “fiduciary agent” learned of the Veteran’s death when he visited the Veteran’s home as part of a home visit in conjunction with the guardianship proceedings. The fiduciary agent found out that the Veteran had passed away when he went to the home to do the home visit. The Appellant testified that the VA fiduciary visited the Veteran’s home within days of his death. When questioned whether the VA fiduciary provided her with any forms to file for accrued benefits, the Appellant answered that she had received something in the mail and that’s when she started to contact somebody because she could never get through for anybody to explain anything to her. Specifically, section 3.150(b) states that “[u]pon receipt of notice of death of a veteran, the appropriate application form will be forwarded for execution by or on behalf of any dependent who has apparent entitlement to pension, compensation, or dependency and indemnity compensation.” 38 C.F.R. § 3.150(b). Here, the record indicates that VA started the process of having a guardian appointed over the Veteran in September 2008. See “Request for Appointment of a Fiduciary, Custodian or Guardian,” dated September 24, 2008. The Appellant testified that she informed a VA agent of the Veteran’s death when the agent of a Fiduciary, Custodian or Guardian,” visited in September 2008. The JMR indicated that based on the foregoing facts, a guardianship appointment process had been initiated in September 2008, but the record contains no evidence regarding the status of the guardianship proceeding past that point. Moreover, the claims file did not contain a copy of the Veteran’s death certificate until the Appellant’s claim for benefits was filed in 2010. The record is devoid of any explanation as to when VA first learned of the Veteran’s death and why guardianship proceedings appear to have abruptly discontinued in September 2008 when there were benefits due to the Veteran but which remained unpaid. The JMR also stated that there was no evidence to show whether VA met its duty to assist by forwarding to the Appellant an application form for benefits once VA learned of the Veteran’s death. Additionally, the record contains evidence that a “fiduciary file” or guardianship folder existed, but the Board in April 2014 indicated only that the “claims file and VA’s Virtual System” had been reviewed. Thus, the JMR concluded that it appeared the record may have been incomplete as it was not clear whether the Board reviewed the fiduciary file or any file that may have contained information as to when VA first learned of the Veteran’s death and the reason why guardianship proceedings ceased in 2008. Additionally, while the Appellant asserted that she informed VA of the Veteran’s death sometime in late 2008, the record before the Court contained no documentation of a visit to the Veteran’s home in September 2008 or any report of contact reflecting that the Appellant informed VA of the Veteran’s death at that time. The JMR indicated that the Board was to determine whether a fiduciary file (also known as a guardianship folder) or a “First Notice of Death” folder, existed in paper or electronic form and, if so, the Board should review such file to determine when VA first learned of the Veteran’s death, and address whether VA met its duty to provide notice regarding accrued benefits in accordance with 38 C.F.R. § 3.150(b). The Board was also to address how the action or inaction of VA impacted the timeliness of the filing of the Appellant’s application. In response, in January 2016, the Board remanded this case noting that the Appellant asserted she was never properly notified of how and when to file a claim for accrued benefits after VA was notified that the Veteran had died. The Board noted the parties found the record is devoid of any explanation as to when VA first learned of the Veteran’s death and why guardianship proceedings appear to have abruptly discontinued in September 2008 when there were benefits due to the Veteran but which remained unpaid. In addition, there was no evidence to show whether VA met its duty to assist by forwarding to the Appellant an application form for benefits once VA learned of the Veteran’s ‘death. Further, the matter of the existence of a fiduciary folder needed resolution. On remand, on May 9, 2016, the AOJ contacted the Chicago RO regarding the Veteran and whether there was a fiduciary file. The response was the following, “There are no fiduciary related documents in VVA (VA’s Virtual System) so this case is not under supervision by the Milwaukee Fiduciary Hub.” On May 10, 2016, the AOJ replied, [The Appellant] has filed an NOD (notice of disagreement) about her claim not being timely filed. [The Appellant] states that an agent from VA Fiduciary service was sent to the Veteran’s home after his death and she was provided forms to complete for the Veteran’s burial but was not advised about possible entitlement to accrued benefits. In response, the Chicago RO indicated, I read the transcript of the hearing and see that a field examiner went to the Veteran’s home to conduct a field examination only to be told that the Veteran had died the day before. The 21-534 (which is also a claim for accrued benefits) was received 2 years after the death. I saw the death certificate was received in 2010 along with the 534 and assumed the Veteran died about that time, not 2 years earlier. I doubt the field examiner would have all the forms to apply for death and accrued benefits but they should have advised of any potential benefit entitlement at the time. Unfortunately, I would say that any report made by the field examiner who attempted to conduct the field exam would have been destroyed along with the PGF in 2011. The AOJ then replied, I just checked the latest rating in VVA (from 2008) and that shows the Veteran was considered incompetent from 6/1/08. But if the Veteran died prior to the hubs forming up, the PGF wouldn’t have been scanned into VVA with the rest of them. The PGFs were purged at each RO we consolidated and the files were then sent to us for scanning. The PGFs that weren’t active were held by each RO and either destroyed or retired after at least two years of inactivity. If there was a record of a field examiner visiting the widow it would have been in the record. Can you not see the document in VVA dated 1/19/10 called “Fax Cover Sheet?” It’s a VA Form 21-534 signed by [the Appellant]. Thereafter, the following response was provided, We have no records and no documentation of any field examination being conducted because we would not send a field examiner out to help someone apply for benefits. But if we did there would be a record of the field exam in VVA. If an agent from “VA Fiduciary service” was sent to help someone complete a claim for benefits it would have been from your office since the Veteran died prior to the formation of the hub. Sorry, but we don’t have any of the information you seek. In June 2017, the AOJ notified the Appellant that the purported records had been requested from the VA Fiduciary service. However, it was determined that these records cannot be located and therefore are unavailable for review. Further, the Appellant was advised that all efforts to obtain the needed information have been exhausted, and based on these facts, the AOJ determined that further attempts to obtain the records would be futile. The Appellant was advised of efforts taken and was told so submit relevant documents or to advise VA where relevant documents could be obtained. The Board has reviewed the Appellant’s testimony that a field examiner came to the Veteran’s residence close in proximity to his death. The Appellant is credible in her report. The purpose of the visit clearly was not to assist the Appellant with death benefits since she indicated that the examiner was unaware that the Veteran had died and she informed the examiner of the Veteran’s death. Thereafter, the Appellant indicated that she initially filed a burial benefit claim and began to call VA for information about benefits. She related that she was assisted by a VA representative near the end of 2008. She indicated that she then filed the claim for accrued benefits; that she filed two claims, one was for burial benefits and one was for accrued benefits. However, VA did not process the claims and she believed that VA was busy when in fact, she currently believes that they lost the claims. On remand, the JMR indicated that the Board must determine whether a fiduciary file (also known as a guardianship folder) or a “First Notice of Death” folder, exists or existed. In this case, if there was any file, it was destroyed. However, that matter is not dispositive regarding other considerations in this case. The Board has found credible that a field examiner visited the Veteran’s residence and was informed of his death. Per the Appellant’s testimony and the electronic mail exchanges, no paperwork was provided to her at that time because that was not the purpose of that visit. While it is unclear if the field examiner reported the Veteran’s death per 38 C.F.R. § 3.150 generally, by the Appellant’s admission, she was subsequently assisted by a VA representative by December 2008. The Board believes that this assistance included compliance with 38 C.F.R. § 3.150. The United States Court of Appeals for Veterans Claims (Court) has held that there is a presumption of regularity under which it is presumed that government officials have properly discharged their official duties. Clear evidence to the contrary is required to rebut the presumption of regularity of VA’s administrative process. See Mindenhall v. Brown, 7 Vet. App. 271 (1994) (citing Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992)). In this case, the presumption of regularity indicates that, if the Appellant had filed the VA forms with the RO, the RO, acting in its regular course of business and following its regular processes, would have placed the forms in the Veteran’s claims file and acted on it. See Fithian v. Shinseki, 24 Vet. App. 146, 150-51 (2010). Clear evidence to the contrary is not shown in this case that the VA representative did not adequately assist the Appellant and provide the forms in question sufficient to rebut the presumption of regularity of VA’s administrative process. In fact, the Appellant maintains that she did file the forms thereafter in a timely manner. Thus, it is incongruent to find that she was not provided the forms if she says she completed them and the JMR inquiry regarding the impact of VA’s action or inaction on timeliness is not dispositive. Nonetheless, even though she states she submitted the burial application and the accrued benefits application, a review of the applications reflects no date printed by her on the forms and only a date stamp of receipt by the AOJ, which as indicated above, was in 2010. Her claim was resolved within a few months with the burial benefits claim being granted. The Board finds that the record does not support that a timely application for accrued benefits was made in this case. The claim had no date printed on it by the Appellant. It is unreasonable to find that the fiduciary file was destroyed, but these forms were not destroyed yet were not associated with the Veteran’s claims file otherwise, paper or virtual. The Board finds that the forms were submitted in 2010. Because the Appellant’s claim for accrued benefits was not timely filed, the criteria for entitlement to accrued benefits are not met. While the Board is truly sympathetic to the Appellant’s claim, the claim is simply precluded by law. The Court has held that, in cases such as this, where the law is dispositive, the claim should be denied because of the absence of legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Connolly, Counsel