Citation Nr: 19123793 Decision Date: 04/01/19 Archive Date: 03/29/19 DOCKET NO. 17-17 690 DATE: April 1, 2019 ORDER Entitlement to accrued benefits is denied. Entitlement to non-service-connected burial benefits is denied. Entitlement to service-connected burial benefits is denied. FINDINGS OF FACT 1. The Veteran had no claims for VA benefits pending at the time of his death. 2. The Veteran did not die while admitted to a VA facility for hospital, nursing home, or domiciliary care, or while admitted or traveling to a non-VA facility at VA expense for examination, treatment, or care. 3. The Veteran was not receiving any VA compensation or pension benefits at the time of his death. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to accrued benefits have not been met. 38 U.S.C. §§ 5101, 5121 (2012); 38 C.F.R. § 3.1000 (2018). 2. The criteria for payment of non-service-connected burial benefits are not met. 38 U.S.C. §§ 2302, 2303 (2012); 38 C.F.R. § 3.1705 (2018). 3. The criteria for payment of service-connected burial benefits are not met. 38 U.S.C. § 2307 (2012); 38 C.F.R. § 3.1704 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1954 to May 1957. He died in January 2016. The appellant is the Veteran’s surviving spouse. The appellant appeals September 2016 and December 2016 administrative decisions by the Agency of Original Jurisdiction (AOJ) denying entitlement to accrued and burial benefits. Accrued Benefits The appellant claims the Veteran had a pending pension claim before his death, and “all that [she] wants is the accrued benefits, the disability pension that was taken from the now deceased Veteran.” See September 2016 appellant statement. The law provides for payment of certain accrued benefits upon death of a beneficiary. 38 U.S.C. § 5121. Accrued benefits are the monetary sums which the Veteran was legally entitled to receive from VA at the time of his death but were unpaid. Upon the death of the Veteran, all benefits which are properly payable shall be paid to the Veteran’s spouse, if living. 38 U.S.C. § 5121(a), 5121(a)(2); 38 C.F.R. § 3.1000(a). For the appellant to be entitled to accrued benefits, the Veteran 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 1296, 1299-1300 (Fed. Cir. 1998). Here, the Board notes that the Veteran was not service-connected for any disability during his life. In March 1993, VA awarded the Veteran non-service-connected pension from September 10, 1992. See March 1993 rating decision. In December 2001, VA granted special monthly pension based on the need for aid and attendance from January 21, 2001. See December 2001 rating decision. The Veteran continued to receive his pension until VA discovered unreported and unearned income. After discovering unreported, unearned income, VA proposed to terminate his pension effective January 1, 2007 pending receipt of relevant financial documents in May 2010. See August 2011 statement of the case (SOC). On July 26, 2010, VA took the adverse action as proposed, which resulted in an overpayment of $78,946.00. This together with an existing debt of $1,949.00 gave him a total debt of $80,895.00. VA’s decision to terminate the Veteran’s pension and not reinstate it during his lifetime is at the crux of this dispute. During his life, he sought this debt waived and pension reinstated. Nevertheless, as explained below and after repeated inquiries, he never supplied the requisite documentation to the AOJ and did not have a pending claim at death. As to the waiver, in October 2010 the Veteran submitted a waiver request without a completed Financial Status Report (FSR). The Debt Management Center (DMC) denied the request, and the Veteran paid his $80,895.00 debt in full on March 18, 2011. See August 2011 SOC. After submitting a NOD, VA denied the waiver again, stating that “[w]ithout a properly completed FSR, the Committee is still unable to determine whether unjust enrichment would exist.” Id. The Veteran did not submit a substantive appeal as to this issue, thus, the waiver decision became final. Concomitantly, the Veteran applied to reinstate his terminated pension on August 26, 2010. In response, VA determined the Veteran needed to submit the following documents to continue his pension: (1) Eligibility Verification Reports (EVF) for 2007, 2008, 2009, and 2010; (2) Financial Status Report; (3) income verification from the financial institutions for which he received unearned income in 2007; and (4) Medical Expense Reports (MER) for 2007, 2008, 2009, and 2010. See March 2011 notification letter. While the Veteran submitted EVFs for 2007, 2008, 2009, and 2010, he did not complete boxes pertaining to his net worth for 2007-2009. Importantly, the Veteran did not send statements from financial institutions to verify interest and dividends he reported each year. He also did not submit an FSR. See January 2011 VA notification letter. As a result, VA denied his claim to reopen his pension. See March 2011 notification letter. Similarly, VA denied his petitions to reopen in July 2012 and October 2012 because they did not receive required documents. Within a year of the October 2012 letter, the Veteran did not submit new and material evidence or a NOD. Thus, the October 2012 decision became final. Over a year later, the Veteran’s wife requested reinstatement of her husband’s pension because “he is service connected and it is proven.” See January 2014 statement. Like in July 2012 and October 2012, the AOJ stated it could “take no further action until [it] receive[d] [the Veteran’s] completed application.” See May 2014 AOJ letter. As before, the AOJ instructed the Veteran to complete, sign, and return an eligibility verification report and medical expense reports. Id. Without submitting income verification as previously instructed in July 2012, October 2012, and May 2014, the Veteran again sought reinstatement in June 2014. See June 2014 Veteran statement. In September 2014, the AOJ acknowledged the Veteran’s request to reinstate his pension. However, for the fourth time since July 2012, the AOJ advised the Veteran that he was required to complete an Eligibility Verification Report to consider his claim. He was also advised the AOJ would “take no further action until [it] receive[s] [the Veteran’s] completed application.” See September 2014 AOJ letter. VA resent this letter on March 23, 2015. See March 2015 AOJ letter. Here again, the Veteran’s completed income verification reports, financial status report, and interest income verification from financial institutions never arrived, and the appellant has still not provided such records. Next, the AOJ received a letter on March 26, 2015 asking VA to pay back the $80,895 the Veteran stroked a check for in March 2011 and reinstate his pension. After acknowledging receipt of the application, VA instructed the Veteran that regulations now require all claims to be submitted on a standard form. See October 2015 AOJ letter; see also 38 C.F.R. § 3.155 (2015). The AOJ then stated that “to begin processing [the Veteran’s] claim, [he] must submit an application for benefits[,]” and supplied the form. Id. The Veteran died on January [Redacted], 2016. He did not submit a claim on the appropriate VA form as instructed by the AOJ. Posthumously, VA received such a form for several ailments that did not include pension. See February 2016 VA Form 21-526EZ. The form was sent on January 27, 2016. As the Veteran did not send the prescribed form before January [Redacted], 2016, there was no pending claim as of the date of his death. Therefore, the record contains no evidence that VA owed the Veteran money at the time of his death or that the Veteran had a pending claim at the time of his death. Therefore, the claim for accrued benefits is denied. Burial Benefits Appellant contends the Veteran had a pending pension claim before death; as a result, she is entitled to non-service-connected burial benefits. See September 2016 appellant statement. Where a veteran’s death is not service connected, a burial allowance to cover the burial and funeral expenses, as well as the expense of transporting the body to the place of burial may be payable, but only under certain circumstances. 38 U.S.C. § 2302(a); 38 C.F.R. § 3.1705. A non-service-connected burial allowance is payable when on the date of the veteran’s death he was receiving VA pension or disability compensation or had a pending claim that would have resulted in a grant of benefits. See 38 C.F.R. § 3.1705. Alternatively, a burial allowance may be paid if a veteran died from non-service-connected causes while properly admitted to a VA facility for hospital, nursing home, or domiciliary care; or while admitted or traveling to a non-VA facility with prior authorization and at VA expense for examination, treatment, or care. See 38 C.F.R. § 3.1706. A burial allowance is for a veteran who died because of a service-connected disability or disabilities. See 38 C.F.R. § 3.1704 (2018). At the time of his death, the Veteran was not receiving any VA compensation or pension benefits, and the evidence does not reflect that there was an original or reopened claim for either benefit pending which was ultimately granted. Further, it is uncontroverted that the Veteran died at a private hospital. Here, as stated above, the Veteran was not service-connected for any disabilities at death. While his code sheet reflected disabilities such as degenerative arthritis, hypertension, and hiatal hernia, these disabilities were considered for “pension purposes only.” See October 2008 rating codesheet. Thus, he was not service connected for said disabilities. The Veteran’s death certificate states he died of a heart attack and lung cancer. See Death Certificate. The record does not establish, nor does the appellant posit, a plausible link between these conditions and the Veteran’s military service. Nevertheless, the Board is sympathetic to the fact that the appellant incurred costs related to the Veteran’s funeral and burial and acknowledges that the Veteran had honorable service. However, on these facts, the appellant’s claim is denied. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Salazar, Associate Counsel