Citation Nr: 18154789 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 15-15 570 DATE: November 30, 2018 ORDER Entitlement to accrued benefits is denied. FINDING OF FACT The appellant is not the surviving spouse’s “child” within the statutory definition of that term for VA purposes; he has not provided proof that he bore the cost of the surviving spouse’s final illness and burial. CONCLUSION OF LAW The criteria for a grant of accrued benefits have not been met. 38 U.S.C. §§ 101, 5107, 5121; 38 C.F.R. §§ 3.57, 3.102, 3.1000. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty between 1943 and 1947 (the Veteran’s DD214 is not available to confirm his specific dates of service). The Veteran died in August 2006. The Veteran’s surviving spouse died in July 2012. The appellant is the Veteran’s and the surviving spouse’s adult son. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 decision letter issued by the Department of Veterans Affairs (VA) Pension Management Center (PMC) in St. Paul, Minnesota. 1. Entitlement to accrued benefits The appellant seeks entitlement to accrued benefits owed to his mother by virtue of a claim filed prior to her death. The Board finds that the claim must be denied. The law provides for payment of certain accrued benefits upon death of a beneficiary. 38 U.S.C. § 5121. 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 beneficiary’s spouse; (B) the beneficiary’s children (in equal shares); (C) the beneficiary’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. 38 U.S.C. § 5121(a)(6). In short, when a claimant dies prior to funds owed to them being paid, those funds become “accrued benefits” and may only be released to certain parties as defined by Federal law. The definition of “children” in section 5121 is not the commonly understood definition, but rather, “child” is expressly defined in 38 U.S.C. § 101(4)(A) as a person 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 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.57; Burris v. Principi, 15 Vet. App. 348, 352-53 (2001); Nolan v. Nicholson, 20 Vet. App. 340 (2006). The surviving spouse filed a claim for survivor’s pension benefits in October 2011. That claim was pending at the time of her death in July 2012. Because she died prior to a decision on her claim, the claim was suspended. The appellant filed a claim for accrued benefits, requesting that he be allowed to continue her claim pending at the time of her death. Although the merits of the underlying claim have not been addressed by the PMC, the Board must conclude that the accrued benefits claim must be denied as the appellant does not meet the criteria for a party eligible to receive such benefits. At the outset, the Board notes that, as the decedent’s son, the appellant cannot be considered a “surviving spouse” or “dependent parent” within the meaning of those terms. Further, although he is the surviving spouse’s son, he is her adult son and has not provided any evidence that he became permanently incapable of self-support prior to age 18 (or age 23 while pursuing approved higher education). Therefore, to the extent that the appellant has not been shown to meet the statutory definition of “child” for VA purposes, the Board is unable to award him any funds owed to his mother at the time of her death. Because he does not meet the statutory definition of the first three eligible parties to receive accrued benefits, the Board is limited in its ability to grant any benefits beyond those incurred by the appellant to cover the cost of the surviving spouse’s final illness and burial. This is the only way the appellant can claim funds owed to the surviving spouse at the time of her death. On his initial application for accrued benefits, the appellant left blank Section III, which requests information regarding the debts and expenses incurred by the applicant for the decedent’s last sickness and burial. VA issued a statement of the case in which it explained that any funds owed to the surviving spouse at the time of her death could only be paid to the appellant in the amount spent by him for his mother’s final illness and burial, which he had not claimed. With his VA Form 9 he submitted a letter indicating that his mother, and not he, incurred all of her final expenses during the final ten months of her life. The Board is certainly not unsympathetic to the appellant’s claim. His mother had a claim pending at the time of her death, which may or may not have been granted had she not passed prior to a decision on the claim. The Board is certainly aware that VA benefits claims often take a considerable amount of time before a decision is rendered, a situation which VA is actively seeking to remedy. However, once a claimant dies, any benefits owed to the claimant, in this case the surviving spouse, become accrued benefits. Accrued benefits, if they exist, may only be released to certain parties, and under very specific circumstances as provided by Federal law. In this case, even if the appellant were to pursue his mother’s claim to fruition, he would not be eligible to claim those funds owed to her because he has not met the criteria for a party to whom accrued benefits may be released. He is not a surviving spouse or dependent parent of the deceased. He does not meet the statutory definition of “child” for accrued benefits purposes. And he has denied that he incurred any of his mother’s final expenses (in fact, he has asserted that she covered those expenses herself in her final months). Therefore, to the extent that the appellant has claimed any funds owed to his mother by virtue of her pension claim filed in October 2011 (the Board does not make any conclusion regarding the validity of the initial pension claim), his accrued benefits claim must be denied as he cannot receive those funds per Federal law.   In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel