Citation Nr: 19147151 Decision Date: 06/18/19 Archive Date: 06/17/19 DOCKET NO. 18-38 489 DATE: June 18, 2019 ORDER Entitlement to accrued benefits is denied. FINDING OF FACT The Veteran died in September 1986, and the appellant’s claim for accrued benefits was filed on November 6, 2017, more than one year after the date of the Veteran’s death. CONCLUSION OF LAW The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. §§ 5107, 5121; 38 C.F.R. § 3.1000. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1972 to November 1975. The Veteran died in September 1986. The appellant in this claim is his surviving spouse. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2017 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) denying the appellant’s claim for entitlement to accrued benefits. As a preliminary matter, the Board notes that the appellant’s initial claim for accrued benefits was determined by the RO to also be a claim for dependency and indemnity compensation (DIC) and death pension, as it was noted that she had filled out the pension portion of the form, although she did not check the box at the top applying for these benefits. The RO denied entitlement to DIC and death pension in an October 31, 2018 decision. As of yet, the appellant has not submitted a Notice of Disagreement with this decision, and as such, the Board has no jurisdiction to adjudicate those claims. The appellant is reminded that Notices of Disagreement must be filed within 1 year of the date that the RO mailed notice of the determination to her. 38 C.F.R. § 20.302. 1. Entitlement to accrued benefits is denied. Periodic monetary benefits to which a veteran was entitled at death, either by reason of existing VA ratings or decisions or those based on evidence in the file at date of death, and due and unpaid, are known as accrued benefits. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000; see also Zevalkink v. Brown, 102 F.3d 1236 (Fed Cir. 1996). Applications 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). For a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits, (ii) the veteran had a claim pending at the time of death, (iii) the veteran would have prevailed on the claim if he had not died; and (iv) the claim for accrued benefits was filed within one year of the veteran’s death. 38 U.S.C. 5121, 5101(a); 38 C.F.R. 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). Following timely filing of a proper claim, such benefits will be paid according to a statutorily prescribed order of distribution. Essentially, accrued benefits are paid as follows: (i) to the veteran’s spouse; (ii) his or her children (in equal shares); or (iii) his or her dependent parents (in equal shares) or the surviving parent. 38 U.S.C. 5121(a)(2); 38 C.F.R. 3.1000(a)(1). In all other cases, only so much of the accrued benefit may be paid as may be necessary to reimburse the person who bore the expense of last sickness or burial. 38 U.S.C. 5121(a)(6); 38 C.F.R. 3.1000 (a)(5). Turning to the evidence of record, the Board notes that the Veteran died in September 1986. At the time of his death, he was not service-connected for any disability, he did not have any pending claims with VA, and he was not entitled to any accrued benefits that had been awarded, but not yet paid. The appellant filed her claim for accrued benefits in November 2017, more than 30 years after the death of the Veteran. The appellant has acknowledged that she never attempted to file a claim for accrued benefits within the one-year period after the Veteran’s death. Considering this, the Board finds that the preponderance of the evidence is against the award of accrued benefits. In this regard, the appellant’s application for accrued benefits was not filed within one year of the Veteran’s death as mandated by law. A review of the record does not reveal anything that could be construed as an informal claim for accrued benefits which was received by VA within a year of the Veteran’s death. The Board has considered the fact that a claim for death pension, compensation, or DIC is deemed to include a claim for accrued benefits. 38 C.F.R. § 3.152(b). Here, however, the appellant neither filed a claim for these benefits within one year of the Veteran’s death, nor anything that could be construed as an informal claim for these benefits. The Board acknowledges the appellant’s contention that she would have filed her claim within one year had she known there was a strict filing deadline for this type of claim. However, the statue does not make exceptions to the one-year filing requirement for any scenarios, except where an incomplete claim is filed. In those cases, VA is required to notify the claimant that the claim is incomplete and what evidence is necessary to complete the claim. 38 U.S.C. § 5121(c); 38 C.F.R. § 3.1000(c). The record in this case does not contain anything that could be construed as an incomplete claim for accrued benefits which would have been received by VA within a year of the Veteran’s death. Considering the strict one-year filing requirement for this type of benefit, the Board finds that the application for accrued benefits is untimely. As such, the Board concludes that entitlement to accrued benefits is not warranted. 38 U.S.C. § 5121(c); 38 C.F.R. § 3.1000(c). In sum, because the appellant did not file a claim for accrued benefits within one year following the Veteran’s death, the claim is precluded by law. Thus, she is not eligible for accrued benefits. 38 U.S.C. § 5121(c); 38 C.F.R. § 3.1000(c). The Board sympathizes with the appellant regarding the loss of her husband and recognizes and appreciates the Veteran’s valuable service to and sacrifice for his country. However, in cases such as this, where the law is dispositive, the claim must be denied because of the absence of legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). MICHAEL SANFORD Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kleponis, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.