Citation Nr: 19115397 Decision Date: 03/01/19 Archive Date: 03/01/19 DOCKET NO. 17-36 974 DATE: March 1, 2019 ORDER The appellant’s claim for accrued benefits was timely filed, and the appeal, to this extent only, is granted. REMANDED Entitlement to accrued benefits is remanded. FINDINGS OF FACT 1. The Veteran died in February 2015. 2. Written communications from an attorney and the appellant’s congressman were received by VA in May and June 2015, respectively, which reference an intent to apply for accrued benefits. 3. In November 2016, VA informed the appellant of the information needed to complete her claim for accrued benefits; the appellant provided the necessary information in December 2016. CONCLUSION OF LAW The appellant’s claim for accrued benefits was timely filed. 38 U.S.C. § 5121; 38 C.F.R. §§ 3.109, 3.150, 3.155, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1965 to July 1967. He died and the appellant is his sister. These matters come before the Board of Veterans’ Appeals (Board) from a December 2016 decision in which the agency of original jurisdiction (AOJ) denied the appellant’s claim for accrued benefits on the basis that her claim was not timely filed. Whether the appellant’s claim for accrued benefits was timely filed An individual entitled to accrued benefits may be paid periodic monetary benefits (due and unpaid) to which a payee was entitled at the time of his death under existing ratings or based on evidence in the file at the time of death. Upon the death of a payee, any accrued benefits are payable to his or her surviving spouse, or to specific others if there is no surviving spouse. 38 U.S.C. § 5121 (a)(2); 38 C.F.R. § 3.1000 (a)(1). In this case, the appellant is the Veteran’s sister and claims entitlement to accrued benefits as the person who bore the expense of the Veteran’s last sickness and burial. See 38 C.F.R. § 3.1000(a)(5). An application for accrued benefits must be filed within one year after the date of death. 38 U.S.C. § 5121 (c); 38 C.F.R. § 3.1000 (c). In order to support a claim for accrued benefits, the Veteran or other payee must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. 38 U.S.C. §§ 5101 (a), 5121(a); Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). A specific claim in the form prescribed by the Secretary must be filed in order for death benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. § 3.152(a). If a claimant’s application is incomplete, the claimant will be notified of the evidence necessary to complete the application. If the evidence is not received within 1 year from the date of such notification, pension, compensation, or dependency and indemnity compensation (DIC) may not be paid by reason of that application. 38 C.F.R. § 3.109. Upon receipt of notice of death of a veteran, the appropriate application form will be forwarded for execution by or on behalf of any dependent who has apparent entitlement to pension, compensation, or DIC. If it is not indicated that any person would be entitled to such benefits, but there is payable an accrued benefit not paid during the veteran’s lifetime, the appropriate application form will be forwarded to the preferred dependent. Notice of the time limit will be included in letters forwarding applications for benefits. 38 C.F.R. § 3.150(b). A claimant, his or duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not of full age or capacity, who indicates a desire to file for benefits under the laws administered by VA, by a communication or action, that does not meet the standards of a complete claim is considered a request for an application form for benefits under 38 C.F.R. § 3.150(a). Upon receipt of such communication or action, the Secretary shall notify the claimant and the claimant’s representative, if any, of the information necessary to complete the application form or form prescribed by the Secretary. 38 C.F.R. § 3.155(a). The Board finds, for the following reasons, that the appellant’s claim for accrued benefits was timely filed. In a June 2010 rating decision, the AOJ denied service connection for lung disability and bilateral ear disability. The Veteran submitted a timely notice of disagreement with the June 2010 decision in July 2010, a statement of the case was issued in February 2011, and the Veteran submitted a substantive appeal (VA Form 9) in April 2011. In November 2013, the Board remanded the claims of service connection for lung disability and bilateral ear disability to the AOJ for further development. The Veteran died in February 2015 while his claims were in remand status and prior to the Board’s issuance of a decision on his appeal. In May 2015, a letter from attorney D.C. Cummings was received by VA, in which he notified VA that the Veteran died in February 2015 and that his “estate wish[ed] to pursue an accrued benefits claim.” Thereafter, in June 2015, written communication from the appellant’s congressman was received by VA. The information received from the congressman included the appellant’s name and address and a statement from the appellant, in which she indicated that she was the Veteran’s sister, that the Veteran had an appeal pending at the time of his death, and that a decision on the pending appeal was requested “for his estate.” A copy of the Veteran’s death certificate and documentation of the appellant’s appointment as the executor of the Veteran’s estate were also included with the communication received from the congressman. The AOJ did not respond to the congressman’s June 2015 communication. Hence, in June 2016, the appellant’s congressman again contacted VA and requested information pertaining to the appeal pending at the time of the Veteran’s death. The AOJ responded to this inquiry by way of a November 2016 letter, in which it notified the appellant that she should submit a signed and completed “Application for Accrued Benefits” form (VA Form 21P-601) if she wished to apply for accrued benefits. A copy of this form was included with the November 2016 letter. A signed and completed VA Form 21P-601 was thereafter received by VA in December 2016. In light of the above, the Board finds that the appellant’s claim for accrued benefits was timely filed. VA was first notified of the Veteran’s February 2015 death in May 2015. The May 2015 communication also specifically indicated that his estate intended to apply for accrued benefits. Also, the June 2015 communication from the appellant’s congressman indicates an intent to apply for accrued benefits. In light of this information, the AOJ should have provided the appropriate application form to the appellant. See 38 C.F.R. §§ 3.150(a), 3.155(a). Rather, the application form was not sent to the appellant until November 2016, after the follow-up inquiry was received from her congressman in June 2016. The appellant submitted the completed application form within one year of the AOJ’s November 2016 letter. For the foregoing reasons, the Board concludes that the appellant’s claim for accrued benefits was timely filed. Hence, the appeal is granted, to this extent only. REASONS FOR REMAND Entitlement to accrued benefits is remanded. With respect to the underlying claim for accrued benefits, a remand is required to allow the AOJ to adjudicate the claim on the merits, in order to avoid prejudice to the appellant. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The extent to which the appellant is legally entitled to accrued benefits and the amount of any such benefits have not yet been considered by the AOJ. Accordingly, the appellant’s claim for accrued benefits is remanded to the AOJ to first consider the claim on the merits. See Sprinkle v. Shinseki, 733 F.3d 1180, 1183–84 (Fed. Cir. 2013) (noting that veterans’ claims are initially developed and adjudicated by the RO and reviewed on appeal by the Board, and that, “[t]o ensure that claimants receive the benefit of this two-tiered review within the agency, all evidence relevant to a claim generally must be considered by the Regional Office in the first instance”). Moreover, the Board points out that certain individuals may file a request to be substituted as the appellant for purposes of processing a claim to completion. A person eligible for substitution includes “a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title....” 38 U.S.C. § 5121A; see 38 C.F.R. § 3.1010 (a). The distinction between the two types of adjudication (substituted claimant vs. accrued benefits) is significant in that the record in a substitution claim is not closed on the date of the Veteran’s death, but rather remains open for submission and development of any pertinent additional evidence. An accrued benefits claimant, on the other hand, must rely on the evidence that was present in the claims file at the time of the Veteran’s death. 38 C.F.R. § 3.1000 (a). The appellant should therefore be asked to clarify whether she wishes to be substituted as the claimant in the present appeal, as opposed to pursuing benefits on an accrued basis. See Reliford v. McDonald, 27 Vet. App. 297 (2015). The matter is REMANDED for the following action: 1. Contact the appellant and ask that she clarify whether she wishes to be substituted as the claimant in the present appeal (in which case the record remains open for submission and development of any additional evidence) or whether she wishes to pursue benefits on an accrued basis (in which case the present appeal will be decided based upon the evidence in the claims file at the time of the Veteran’s death). All efforts to seek such clarification must be documented in the claims file. (Continued on the next page)   2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the appellant’s satisfaction, send the appellant a supplemental statement of the case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Elwood, Counsel