Citation Nr: 18152163 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 15-22 929 DATE: November 21, 2018 ORDER Entitlement to accrued benefits is denied. FINDING OF FACT The claim for accrued benefits was not received within one year of the Veteran’s death. CONCLUSION OF LAW The claim for entitlement to accrued benefits must be denied as a matter of law. 38 U.S.C. §§ 1101, 1110, 1131, 5121 (2012); 38 C.F.R. § 3.1000 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is the surviving spouse of the Veteran, who died in 2011. The appellant was scheduled for hearing with the Board of Veterans’ Appeals in September 2018, but did not appear for that hearing; therefore, the Board will proceed with adjudication of the claim. 1. Entitlement to accrued benefits Upon the death of a veteran, certain persons shall be paid periodic monetary benefits to which the veteran was entitled at the time of death under existing ratings or decisions, or those based on evidence in the file at date of death, and due and unpaid. See 38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000(a) (2017). A claim for accrued benefits must be filed within one year after the date of death of the individual with respect to whom such benefits are sought. 38 U.S.C. § 5121(c) (2012); 38 C.F.R. § 3.1000(c) (2017). The Veteran died in 2011. The appellant filed an informal claim for death pension in March 2013 and an Application for Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits by a Surviving Spouse, VA Form 21-534, in April 2013. As the claim was received more than one year after the Veteran’s death, the time limit prescribed by 38 U.S.C. § 5121 is not satisfied. A review of the claims file does not show any communication from the appellant indicating an intent to file a claim for accrued benefits within one year of the Veteran’s death. The appellant further has not alleged that a claim was filed within a year of the Veteran’s death. In a timeline submitted by the Veteran’s son, July 2013 is listed as the day on which the VA received the appellant’s claim for accrued benefits. Furthermore, to the extent to which the Appellant seeks the retroactive award that the Veteran was found to be entitled to prior to his death, a review of relevant rules and regulations governing payments of VA benefits following the death of the payee do not indicate or otherwise suggest that the Veteran’s estate is entitled to a benefit that he was awarded but had not received before he died. See, e.g. Youngman, 699 F.3d 1301 (The Federal Circuit concluded that the fiduciary had no standing to receive accrued benefits to distribute to the Veteran’s heirs in a case where payment of benefits was delayed while state courts accredited a fiduciary). The Court has interpreted the requirement that the check be “received” by a payee, for purposes of applying 38 U.S.C. § 5122 (2014), as requiring actual receipt by the payee during the payee’s lifetime, that is, that the benefit payment be at least delivered to or under the control of the payee prior to the payee’s death, even if not negotiated, signed, or used by the payee during his or her lifetime. See Wilkes v. Principi, 16 Vet. App. 237, 242-43 (2002) (electronic transfer to deceased payee’s account six days after payee’s death did not constitute “receipt” by the payee for purposes of 38 U.S.C. § 5122 ). In essence, if the payment at issue was made to the payee after his or her death, the provisions of 38 U.S.C. § 5122 (2014) and 38 C.F.R. § 3.1003 (2014) are inapplicable; rather, the provisions of section 38 U.S.C. § 5121 (2014) govern as to an accrued benefits claim. Id. Thus, as noted in the timeline submitted by the Appellant, while a retroactive award was granted, given the proposed finding of incompetency the check was never issued to the Veteran during his lifetime. (Continued on the next page)   While sympathetic to the appellant’s claim, the Board is nonetheless bound by the law and is without authority to grant the claim on an equitable basis. See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416 (1994). Under these circumstances, the Board finds that the appellant did not file a timely claim for accrued benefits. As the law is dispositive of this claim, it must be denied for lack of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Christensen