Citation Nr: 18112652 Decision Date: 06/20/18 Archive Date: 06/20/18 DOCKET NO. 14-39 522 DATE: June 20, 2018 ORDER Entitlement to accrued benefits is denied. FINDING OF FACT The pension amount the Veteran was paid in his lifetime exceeds the compensation amount to which he was entitled. CONCLUSION OF LAW The criteria for accrued benefits have not all been met. 38 U.S.C. §§ 5101, 5107, 5121, 5304 (2012); 38 C.F.R. §§ 3.102, 3.152, 3.700, 3.1000 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1967 to May 1974. The Veteran died in February 2013; the Appellant in this case is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to accrued benefits Accrued benefits are periodic monthly benefits to which a Veteran was entitled but were unpaid at the time of death. 38 U.S.C. § 5121. At the time of his death, the Veteran had pending claims for entitlement to service connection for ischemic heart disease, diabetes mellitus, status post cerebrovascular accident, degenerative joint disease, hypertension, entitlement to a compensable disability rating for pterygium, entitlement to dependent’s educational assistance (DEA), and entitlement to special monthly compensation based on aid and attendance/housebound. At the time of his death, the Veteran was not receiving compensation payments for any service-connected disabilities. However, the Veteran was receiving nonservice-connected pension payments. In a March 2002 rating decision, the Veteran was found entitled to permanent and total non-service-connected pension as of March 14, 2001. After the Veteran’s death, the Veteran’s surviving spouse filed a claim for Dependency and Indemnity Compensation or Death Pension and Accrued Benefits. In June 2018, an RO determined the Veteran’s spouse met eligibility for substitution In January 2014, the RO issued a rating decision granting service connection for ischemic heart disease, diabetes mellitus, and the Veteran’s cause of death. The rating decision also granted DEA and increased the Veteran’s disability rating for pterygium to 60 percent. The rating decision denied service connection for status post cerebrovascular accident, degenerative joint disease, hypertension, and special monthly compensation based on aid and attendance/housebound. As a result of this rating decision, the Veteran’s combined evaluation for compensation was 60 percent from June 7, 2001 through December 4, 2011, 80 percent from December 5, 2011 through February 20, 2013, and 90 percent beginning February 21, 2013, the date of the Veteran’s death. When a Veteran is entitled to both compensation and pension benefits, he or she cannot receive both benefits at the same time. 38 C.F.R. § 3.700. As noted above, the Veteran received pension benefits during his lifetime. The monthly amount of the pension benefits he was paid during his lifetime exceeded the amount of compensation benefits he was found entitled to per the January 2014 rating decision, which is discussed in more detail below. As the Veteran received the larger of the two benefits and was paid these benefits during his lifetime, there are no unpaid benefits that he was entitled to at the time of his death. Turning to the relative amount of the pension and compensation benefits, the Board finds that the Veteran’s pension benefits were greater than the compensation benefits he would have been entitled to. The relative amounts of these benefits are detailed below. The pension amounts on the chart below are the monetary benefits the Veteran was paid during his lifetime. The compensation amounts are the benefits the Veteran would have been entitled to based on the January 2014 rating decision, subject to the regulations regarding disbursement.   Date Pension Amount Compensation Amount Percent Disabled Rate 6/1/2001 $775 $769 60 Veteran alone 12/1/2001 $796 $790 60 Veteran alone 12/1/2002 $807 $801 60 Veteran alone 12/1/2003 $824 $817 60 Veteran alone 12/1/2004 $846 $839 60 Veteran alone 12/1/2005 $881 $873 60 Veteran alone 1/1/2006 $1,154 $954 60 Veteran with spouse 12/1/2006 $1,192 $984 60 Veteran with spouse 1/1/2007 $1,348 $1,045 60 Veteran, spouse, child 12/1/2007 $1,379 $1,068 60 Veteran, spouse, child 6/1/2008 $1,538 $1,110 60 Veteran, spouse, two children 12/1/2008 $1,627 $1,174 60 Veteran, spouse, two children 12/1/2009 $1,627 $1,174 60 Veteran, spouse, two children 12/1/2010 $1,627 $1,174 60 Veteran, spouse, two children 12/1/2011 $1,686 $1,215 60 Veteran, spouse, two children 1/1/2012 $2,368 $1,753 80 Veteran, spouse, two children, special monthly pension (SMP) 12/1/2012 $2,409 $1,782 80 Veteran, spouse, two children, special monthly pension (SMP) 1/1/2013 $2,409 $1,782 80 Veteran, spouse, two children, special monthly pension (SMP) 2/1/2013 $2,409 $2,003 90 Veteran, spouse, two children, special monthly pension (SMP) The Board acknowledges the Appellant’s argument in the January 2014 notice of disagreement that accrued benefits should commence on June 7, 2001, when the Veteran’s entitlement for ischemic heart disease arose. The Veteran was entitled to compensation benefits as of June 7, 2001, subject to the regulations regarding disbursement of monetary benefits. However, as shown above, the Veteran’s pension benefits exceeded his compensation benefits. As the Veteran could not receive both pension and compensation at the same time, he would have been paid the larger of the two benefits. The larger of the two benefits is his pension, which he was paid during his lifetime. Therefore, the Veteran did not have any unpaid benefits at the time of his death and the Appellant is not entitled to accrued benefits. (CONTINUED ON NEXT PAGE) The preponderance of the evidence is against the finding that the Appellant is entitled to accrued benefits. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Norah Patrick, Associate Counsel