Citation Nr: 18152947 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 15-09 302 DATE: November 26, 2018 ORDER Entitlement to accrued benefits is denied. FINDING OF FACT The Appellant filed his initial accrued benefits claim more than one year after the beneficiary’s death. CONCLUSION OF LAW The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 decision of the Department of Veterans Affairs (VA) Pension Management Center in Milwaukee, Wisconsin, that reconsidered and denied the Appellant’s claim of entitlement to any accrued benefits that may have been due and unpaid to his mother, H.T., the Veteran’s surviving spouse, at the time of her death. Accrued benefits are periodic monetary benefits to which a beneficiary was entitled at the time of death, and which were due and unpaid, based on existing rating decisions or other evidence that was on file when the beneficiary died. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. A survivor who is a member of one of the statutorily enumerated categories of recipients in 38 U.S.C. § 5121 may be paid accrued benefits, but his or her application for accrued benefits must be filed within one year of the beneficiary’s death. 38 U.S.C. §§ 5121(c); 38 C.F.R. § 3.1000(c). Here, the record establishes H.T. died in June 2011. The Appellant filed his initial accrued benefits claim in April 2013. Since Congress has established a one-year filing requirement for accrued benefit claims under 38 U.S.C. § 5121, the Appellant’s claim is barred as a matter of law. See Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992), citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990) (“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.”). In reaching this determination, the Board fully acknowledges the timeline the Appellant submitted in conjunction with his April 2014 notice of disagreement. The Board notes statements and forms submitted during his mother’s lifetime cannot give rise to an accrued benefits claim since accrued benefits are only available after the death of a beneficiary. The October 2011 VA Form 21-0845 (Authorization to Disclose Information to a Third-Party) he submitted is also insufficient to constitute an accrued benefits claim because it provides no indication of an intent to seek accrued benefits. The Board also notes there is no indication the Appellant filed a specific request to substitute for his mother within one year of her death. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. Further, the appeal period for the decision that granted H.T.’s pension benefits ended on September 8, 2011. As such, substitution would not have been possible after September 8, 2011 because there was no longer a pending claim within the meaning of the applicable regulation. See 38 C.F.R. § 3.1010(g)(1). In this regard, the Board recognizes the Appellant submitted a written statement in March 2011 expressing his desire to appeal the effective date of his mother’s pension benefits; however, this statement did not constitute a valid notice of disagreement regarding the September 2010 pension decision since H.T. was still alive at that time and the Appellant was not appointed as her authorized representative. In sum, the Board finds the preponderance of evidence is against a finding that the Appellant filed an accrued benefits claim within one year of his mother’s death. This is a Congressional stipulated requirement for accrued benefits claimants. 38 U.S.C. §§ 5121(c); 38 C.F.R. § 3.1000(c). Thus, the law is dispositive, and the Appellant’s claim of entitlement to accrued benefits must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. S. Kyle, Counsel