Citation Nr: 19121997 Decision Date: 03/25/19 Archive Date: 03/23/19 DOCKET NO. 17-53 352 DATE: March 25, 2019 ORDER Entitlement to accrued benefits upon the death of the Veteran’s surviving spouse is denied. FINDINGS OF FACT 1. The Veteran died in August 1983 and his surviving spouse, P.T., died in March 2016. 2. The appellant, who is not a “child” for accrued benefits purposes, is the daughter of the Veteran and the Veteran’s surviving spouse; she filed an initial claim for accrued benefits in January 2017. 3. The Veteran’s surviving spouse was in receipt of death pension at the time of her death; she had no claims pending with the VA at the time of her death and there were no unpaid VA benefits due at the time of her death. CONCLUSION OF LAW The criteria for eligibility for accrued benefits have not been met. 38 U.S.C. §§ 5112, 5121(a); 38 C.F.R. §§ 3.57(a), 3.500(g), 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1941 to November 1945. The record shows that he died in August 1983 and was survived by his spouse, P.T., who died in March 2016. The appellant is the daughter of the Veteran and his spouse, and the executrix of the Estate of P.T. Entitlement to accrued benefits upon the death of the Veteran’s surviving spouse The appellant seeks entitlement to accrued benefits owed to her mother, the Veteran’s surviving spouse, at the time of her death. Essentially, it is asserted that her mother had unreimbursed medical expenses incurred prior to her death that should have offset her income such that there should have been an increase in her death pension award. Accrued benefits are periodic payments to which a payee was entitled that were due and unpaid at the time of his or her death, which may be paid to the Veteran’s surviving spouse, child, or dependent parents. Upon the death of a surviving spouse of a Veteran, accrued benefits may be paid to the Veteran’s children. 38 C.F.R. § 3.1000(a)(1)-(2). For these purposes, a “child” is as defined in 3.57 and includes an unmarried child under the age of 18 years, an unmarried child over the age of 18 but not over 23 years of age who was pursuing an eligible course of instruction at the time of the payee’s death, or a child of any age who became permanently incapable of self-support prior to attaining 18 years of age. 38 C.F.R. §§ 3.57(a), 3.1000(d)(2). After the death of a claimant, if there was a claim or appeal pending at the time of death, then an eligible person may apply for accrued benefits, as discussed above. Alternatively, where the claimant at issue died after October 10, 2008, as in this case, an eligible person may apply to be a substitute claimant in order to complete processing of the claim or appeal and obtain benefits. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(a). In either case, the application must be received within one year after the death of the claimant, and the applicant must be an eligible person. Id. An application to be a substituted claimant also may only be made by a person eligible for accrued benefits under 38 C.F.R. § 3.1000(a). 38 C.F.R. § 3.1010(a). A threshold factor in determining entitlement to any type of VA benefits is whether there is an eligible claimant. The relevant facts are undisputed in this regard. The appellant is the adult daughter of the deceased Veteran and his deceased surviving spouse, and older than 23 years of age, as she reported in the January 2017 application for accrued benefits that she had been born in February 1954. Further, the record does not demonstrate, and the appellant has not contended, that before attaining the age of 18 years, she became permanently incapable of self-support. Thus, the only means upon which the appellant would have standing as an accrued benefit claimant is by showing she paid the expenses of last sickness or burial of the deceased surviving spouse. (The Board notes that the appellant does have a sibling who was adjudicated as permanently incapable of self-support in September 1982. He is not a party to the current appeal.) At the time of her death the Veteran’s surviving spouse was in receipt of death pension benefits from VA, but had no pending claims for additional pension at the time of her death. In this regard, the record reflects the Veteran’s surviving spouse was awarded death pension benefits in January 1984. As noted, review of the records shows that the Veteran’s surviving spouse had no pending claims for additional pension benefits at the time of her death. Specifically it is noted that, following receipt of her medical expense report in December 2015, the only correspondence received from the surviving spouse concerned a request for a breakdown of her pension benefits. A February 2016 notice letter reported, in part, that her death pension award was amended based on her medical expense report received in December 2015. Thereafter, there was correspondence regarding the breakdown of her benefits and, in May 2016, a notice of the surviving spouse’s death. A subsequent May 2016 notification reflects the Veteran’s surviving spouse’s pension benefits were terminated effective March 1, 2016. The record does not reflect there were there any benefits owed her but unpaid at the time of her death. In January 2017, the appellant filed a VA Form 21-524, Application for DIC, Death Pension, and Accrued Benefits. She did not report that she had paid expenses of the Veteran’s surviving spouse’s last sickness or burial. She did submit a medical expense report covering her mother’s medical expenses from January 2016 to the time of her death in March 2016. In her correspondence, the appellant requested repayment of out-of-pocket medical expenses for the period from January 1, 2016, to March 27, 2016, the date of the surviving spouse’s death In her December 2016 substantive appeal, the appellant reported that the surviving spouse had always submitted her medical expenses in December for the entire year so as to make only one request. The appellant did not request funeral expenses or expenses from the surviving spouse’s last sickness. In her substantive appeal, the appellant stated that she requested payment of medical expenses that were submitted following the death of the surviving spouse and which were out-of-pocket expenses incurred by the surviving spouse prior to her death. The Veteran’s surviving spouse had no valid pending claim at the time of her death, nor were there any benefits owed her but unpaid at the time of her death. As such, there is no entitlement to any unpaid benefits because the benefits do not exist to be paid. Additionally, as was explained and clarified in the September 2017 statement of the case, VA has never reimbursed medical expenses even during the surviving spouse’s lifetime. Rather, VA used this amount/information to reduce the surviving spouse’s countable income to calculate the proper amount for her death pension benefits. There was no such request pending at the time of the surviving spouse’s death to recalculate the amount of death pension benefits she received based on her medical expenses. Therefore, the Board must deny the claim as there are no existing accrued benefits. Additionally, the Board also recognizes that the appellant submitted a VA Form 21-0847, Request for Substitution of Claimant Upon Death of Claimant. While the Regional Office did not fully address this matter, as development under these regulations would require a pending claim, which as discussed above, there is not, the Board finds that it need not further address this aspect of the claim. See generally 38 C.F.R. § 3.1010. Based on the undisputed facts of this case, the appellant is not entitled to accrued benefits. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. Although the Board acknowledges the appellant’s contentions and is sympathetic toward the appellant for the death of her mother, it is bound by the law, and this decision is dictated by the relevant statutes and regulations. 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). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joseph P. Gervasio