Citation Nr: 19129355
Decision Date: 04/16/19	Archive Date: 04/15/19

DOCKET NO. 18-03 007
DATE:	April 16, 2019

ORDER

Entitlement to accrued benefits is denied.

FINDING OF FACT

The Veteran’s surviving spouse 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 basic eligibility criteria for payment of accrued benefits have not been met.  38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000 (2018).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 1943 to February 1946.  The Veteran passed away in January 1969.  His surviving spouse passed away in February 2017, and the appellant is the surviving spouse’s fiduciary.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2017 decision from the Department of Veterans Affairs (VA) Regional Office (RO).

1. Entitlement to accrued benefits

Accrued benefits are periodic monetary benefits to which a payee was entitled at the time of death under existing ratings or decisions, or those based on evidence in the file at the date of death and due and unpaid.  Accrued benefits will, upon the death of the veteran or other payee, be paid to the veteran’s spouse, children, or dependent parent.  38 U.S.C. § 5121; 38 C.F.R. § 3.1000.  There is no basis for an accrued benefits claim unless the individual from whom the accrued benefits claim derives had a claim for VA benefits pending at the time of death.  See Jones v. West, 136 F.3d 1296, 1300 (Fed. Cir. 1998).  In other words, to support a claim for accrued benefits, the deceased veteran (or other payee) must have had a claim pending (filed but not finally adjudicated by VA) at the time of his or her death, or otherwise have been entitled to the benefits under an existing rating or decision (e.g., a rating decision awarding benefits was issued, but the veteran, or other payee, died before the benefits could be paid).

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In this case, the appellant does not assert, and the record is otherwise negative for, evidence demonstrating that a claim was pending with VA at the time of the surviving spouse’s death, or that the surviving spouse was entitled to, but that she had not received, any VA benefits.  Accordingly, the provisions of 38 U.S.C. § 5121 and 38 C.F.R. § 3.1000 are dispositive in this matter.  Although the Board is sympathetic to the appellant’s claim, the law is controlling and prohibits the payment of accrued benefits under the factual circumstances of this case.  The Board is bound by the laws and regulations applicable to the benefit sought.  See 38 C.F.R. § 19.5 (2018).  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.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).

 

ANTHONY C. SCIRÉ, JR

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	S. Medina, Associate Counsel