Citation Nr: 19100725 Decision Date: 01/04/19 Archive Date: 01/03/19 DOCKET NO. 16-19 744 DATE: January 4, 2019 ORDER Entitlement to accrued benefits is denied. FINDING OF FACT The appellant did not file a claim for entitlement to accrued benefits within one year of the surviving spouse's death in April 2013. CONCLUSION OF LAW The criteria for entitlement to accrued benefits are not met. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1952 to December 1954. The Veteran and his surviving spouse are deceased. The appellant is the Veteran and his surviving spouse's adult daughter. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 2015 Regional Office (RO) administrative decision. In August 2015, the appellant appointed the above accredited agent as her representative. The Board recognizes this change in representation. In November 2016, the appellant was afforded a hearing before the undersigned Veterans Law Judge at the local RO. The transcript is of record. Entitlement to accrued benefits VA has a duty to provide notification to an appellant with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). In this particular case, the law and not the evidence, is dispositive. Therefore, VA's duties to notify and assist do not apply. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Accrued benefits are benefits to which a payee was entitled at his or her death, based on evidence on file at the date of death, and due and unpaid, to be paid to survivors as provided by law. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. Here, the surviving spouse died in April 2013. In May 2013, VA notified her estate that she had a pending claim that could result in accrued benefits and issued a rating decision on the deceased’s pending claim. The appellant's claim for accrued benefits was filed in September 2014, more than one year after the surviving spouse's death in April 2013. During the November 2016 hearing, the appellant explained that she was extremely busy managing the deceased’s estate and also working, and her family was not familiar with the VA benefits program. The Board is sympathetic to the appellant, but the law and regulations provide no exceptions on these or any other basis. Morris v. Derwinski, 1 Vet. App. 260, 265 (1991) (“[R]egulations are binding on all who seek to come within their sphere, ‘regardless of actual knowledge of what is in the [r]egulations or of the hardship resulting from innocent ignorance.’”) (quoting Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 385 (1947)). As there is no evidence that the appellant or other surviving child filed a claim for accrued benefits prior to September 2014, the application for accrued benefits was not timely, and the accrued benefits claim fails on this basis alone. 38 U.S.C. § 5121(c); 38 C.F.R. § 3.1000(c). The Board notes that RO has not made a substitution determination. However, this is a moot issue since a request for substitution also requires that such a request be filed no later than one year after the claimant’s death. 38 C.F.R. § 3.1010(b). The Board is sympathetic to the appellant and also apologizes for the lengthy delay between the date of the hearing and this decision, which was apparently due to the docket number of this case. See 38 U.S.C. § 7107(a)(1) (2012) (requiring that appeals be considered and decided in regular order according to its place on the docket). However, the Board is bound by the laws and regulations that apply to veterans’ claims. 38 U.S.C. § 7104(c) (2012); 38 C.F.R. §§ 19.5, 20.101(a) (2018). Those laws and regulations require, for the above reasons, that the appellant's claim for accrued benefits must be denied as a matter of law. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. D. Simpson, Counsel