Citation Nr: 18155094 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 15-11 481 DATE: December 4, 2018 ORDER Entitlement to accrued benefits is denied. FINDING OF FACT The appellant is not a dependent child of the Veteran’s surviving spouse and the evidence fails to demonstrate that he paid any of the surviving spouse’s final expenses of illness or burial. CONCLUSION OF LAW The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. § 5121; 38 C.F.R. 3.57, § 3.1000. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active military service from September 1941 to October 1945. He died in March 1998. The record includes a May 2013 rating decision granting non-service-connected disability pension with special monthly pension to the Veteran’s surviving spouse effective May 2012. However, this decision was never issued. A May 2013 letter to her estate from VA noted that processing on her claim for VA benefits had been stopped, as a data match with the Social Security Administration revealed that she had passed away in March 2013. The appellant is the son of the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 administrative decision of a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to accrued benefits. The appellant is seeking accrued benefits to recuperate the benefits he believes his mother, the Veteran’s surviving spouse, was entitled to based upon the application for VA death benefits with aid and attendance allowance that was in process at the time of her death in March 2013. Periodic monetary benefits (other than insurance and servicemembers’ indemnity) authorized under laws administered by the VA, to which a payee was entitled at his or her death under existing ratings or decisions or those based on evidence in the file at date of death, and due and unpaid will, upon the death of such person, be paid as follows: (1) Upon the death of a veteran to the living person first listed as follows: (i) His or her spouse; (ii) His or her children (in equal shares); (iii) His or her dependent parents (in equal shares) or the surviving parent. (2) Upon the death of a surviving spouse or remarried surviving spouse, to the veteran’s children. (3) Upon the death of a child, to the surviving children of the veteran entitled to death pension, compensation, or dependency and indemnity compensation. (4) Upon the death of a child claiming benefits under chapter 18 of this title, to the surviving parents. (5) In all other cases, only so much of the accrued benefit may be paid as may be necessary to reimburse the person who bore the expense of last sickness or burial. 38 C.F.R. § 3.1000. In the present case, subsection (a)(2) is controlling, which provides that, upon death of the surviving spouse, the veteran’s children will be paid. The definition of the word “child” is set forth further down in subsection (d)(2) of 38 C.F.R. § 3.1000. That subsection states that the word “child” is “as defined in § 3.57 and includes an unmarried child who became permanently incapable of self-support prior to attaining 18 years of age as well as an unmarried child over the age of 18 but not over 23 years of age, who was pursuing a course of instruction within the meaning of §3.57 at the time of the payee’s death.” Section 3.57 generally defines a “child” as one who is under the age of 18 years; who, before reaching the age of 18 years, became permanently incapable of self-support; or who is over the age of 18 (but not yet 23 years old) and is pursuing a course of instruction at an educational institution approved by VA. 38 C.F.R. § 3.57(a)(1). In this case, it appears the appellant is an adult child of the Veteran’s surviving spouse. He does not contend that he meets the criteria set forth in the definitions of “child” in 38 C.F.R. §§ 3.57 and 3.1000(d)(2). In other words, he has not shown that he was below the age of 18, between the ages of 18 and 23 but in an educational program, or was a helpless child (became permanently incapable of self-support prior to reaching the age of 18 at the time of his application in May 2013. See Lynch v. Wilkie, No. 16-0541 (U.S. Vet. App. Oct. 23, 2018). The Board notes that the appellant has not provided his date of birth or other evidence to establish his age. [In the section of the form to identify surviving relatives, the appellant did not include himself, but included a number of other individuals identified as the son or daughter of the beneficiary, all born in the 1940s and 1950s.]. However, on her application for VA death pension, the Veteran’s surviving spouse did not identify having any dependent children (i.e., children that meet the above criteria) at that time, although she did identify the appellant as her contact person. As such, the Board finds the preponderance of the evidence is against a finding that the appellant is a “child” within the construct of the regulation as such contemplates dependent children, which he was not. He has not claimed, nor is there evidence to show, he was a helpless child prior to attaining the age of 18. Thus, the only means upon which the appellant would have standing as an accrued benefit claimant is by showing he paid the expenses of last illness or burial of the surviving spouse. However, the appellant has not made such a claim. In fact, he explicitly noted on the claim form, “claiming no expenses.” (emphasis in original). On his application, he acknowledged that the Veteran’s surviving spouse had a burial plan, and in May 2015 he also stated that the surviving spouse’s burial costs “were p[ai]d yrs ago. By her.” In May 2015, he also acknowledged that his sister paid expenses for the Veteran’s surviving spouse’s assisted living facility. Consequently, the appellant has not asserted or submitted evidence demonstrating that he himself has paid any of the surviving spouse’s final expenses of illness or burial. As such, the Board has no choice but to find that the appellant did not bear such expenses and, therefore, find that payment of accrued benefits is not warranted on this basis. Finally, as a matter of law, claims do not survive a claimant’s death. Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994). Therefore, the surviving spouse’s claim for VA death pension benefits, and her entitlement to payment thereof, died with her. Upon her death, any VA benefits that were due to her, but not paid, do not become part of her estate to be inherited by her heirs. Instead, VA law limits those who are eligible to receive such funds to essentially those who were dependent upon the payee at the time of death, as discussed above. See 38 C.F.R. § 3.1000. Although the Board is sympathetic to the appellant at the death of his mother, the law is controlling in this case and prohibits payment of accrued benefits to anyone but a payee’s dependents with the one exception as discussed. The Board is bound by the laws and regulations applicable to the benefit sought. See 38 C.F.R. § 19.5. As the law is dispositive, the appellant’s claim must be denied because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.M. Kreitlow