Citation Nr: 1825832	
Decision Date: 04/26/18    Archive Date: 05/07/18

DOCKET NO.  14-39 916	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to accrued benefits.


ATTORNEY FOR THE BOARD

Nicole L. Northcutt, Counsel



INTRODUCTION

The Veteran served on active duty from April 1943 to March 1946.  He died in November 2013, and the appellant, a nonrelative, seeks accrued benefits as the person bearing the expenses of the Veteran's last sickness.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision issued in April 2014 by a Regional Office (RO) of the Department of Veterans Affairs (VA).  


FINDING OF FACT

At the time of his death, the Veteran was not entitled to periodic monetary benefits under existing ratings or decisions or those based on evidence in the file on the date of his death which were due and unpaid.


CONCLUSION OF LAW

Entitlement to accrued benefits is not warranted as a matter of law.  38 U.S.C. 
§ 5121 (2012); 38 C.F.R. § 3.1000 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The law governing claims for accrued benefits provides that, upon the death of a veteran, the person who bore the expenses of the veteran's last sickness or burial may be paid periodic monetary benefits to which the veteran was entitled at the time of the veteran's death, and which were due and unpaid for a period not to exceed two years, based on existing rating decisions or other evidence that was on file when the veteran died.  38 U.S.C. § 5121; 38 C.F.R. § 3.1000.

For a claimant to prevail in an accrued benefits claim, the record must show the following: (1) the appellant has standing to file a claim for accrued benefits (see 38 U.S.C. § 5121; 38 C.F.R. § 3.1000); (2) the Veteran had a claim pending at the time of his or her death (see 38 U.S.C. §§ 5101(a), 5121(a); Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998)); (3) the Veteran would have prevailed on his claim if he or she had not died (Id.); and (4) the claim for accrued benefits was filed within one year of the veteran's death (see 38 U.S.C. § 5121(c); 38 C.F.R. § 3.1000(c)). 

The appellant reports that she is a nonrelative of the Veteran who bore the expenses of the Veteran's last sickness, providing hospice-type care to him during his last month of life.  However, while the appellant conceivably has standing to seek accrued benefits owed to Veteran during his lifetime for reimbursement of those expenses related to his last sickness, the Veteran was not entitled to periodic monetary benefits under existing ratings or decisions or those based on evidence in the file on the date of his death which were due and unpaid.  Specifically, no VA compensation remained owed, but unpaid to the Veteran at the time of his death.  With regard to the appellant's assertion that VA failed to remit the Veteran's monthly pension payment for November 2013, the month of his death, such a payment is referred to as a "month of death payment," and is only payable to a veteran's surviving spouse per 38  U.S.C. § 5310(a).  Specifically, the "month of death payment" is not a "periodic monetary benefit" that was payable to the Veteran during his lifetime (thereby qualifying as an accrued benefit), but rather a one-time payment available only to a Veteran's surviving spouse, and thus by its nature, is not an accrued benefit.  See 38 U.S.C. §§ 5310(a), 5121(a); see also M21-1, Part VIII.4.1.g (veteran's rate for the month of death is generally not payable as an accrued benefit).  In any event the appellant does not assert, and the record does not reflect, that she is the Veteran's surviving spouse.  

In sum, no accrued benefits, unpaid but owed to the Veteran during his lifetime, exist from which to reimburse the appellant.  Thus, there is no legal basis upon which to grant her claim.  While Board is very sympathetic to the appellant's arguments, the Board is bound by the applicable regulations and without the legal authority to grant the benefit sought. Accordingly, the claim must be denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).


ORDER

Entitlement to accrued benefits is denied.



____________________________________________
S. BUSH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs