Citation Nr: 19103890 Decision Date: 01/16/19 Archive Date: 01/16/19 DOCKET NO. 16-60 735 DATE: January 16, 2019 ORDER Entitlement to accrued benefits upon the death of the Veteran’s surviving spouse is denied. FINDING OF FACT The Appellant is the Veteran and his surviving spouse’s adult daughter; she is older than 23 years of age, was not permanently incapable of self-support prior to attaining 18 years of age and the evidence fails to demonstrate that she paid any of the surviving spouse’s expenses of last sickness or burial. CONCLUSION OF LAW The criteria for eligibility for accrued benefits have not been met. 38 U.S.C. 5121 (a); 38 C.F.R. §§ 3.57 (a), 3.1000(a), (d). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1942 to December 1945. The Veteran died in January 1994, and his surviving spouse died in November 2014; the Appellant is their daughter. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 administrative decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. 1. Entitlement to accrued benefits upon the death of the Veteran’s surviving spouse The Appellant seeks payment of accrued benefits, specifically death pension benefits, that she believes were due and owing to her mother at the time of her death. Specifically, in July 2012, the Veteran’s surviving spouse filed a claim for dependence and indemnity compensation (DIC) based on the Veteran’s cause of death, death pension, and accrued benefits. She was notified in December 2013 correspondence, that as further documentation was not received, her claims were denied. In January 2014, she resubmitted her DIC claims with additional documents and was notified these claims were denied in July 2014 correspondence. The July 2014 notice letter, in particular, denied death pension benefits based on a finding that her net worth was sufficient to meet her living expenses at the time. In September 2014, an informal claim for death pension benefits was resubmitted. Specifically the informal claim reported that the reason for the resubmission was that while her July 2012 claim was denied due to her financial status as that time, as of June 2012, she no longer owned her home and no longer had any finances with which to continue her residence at an assisted living facility. It was stated that the proceeds from the sale of her home had been used solely for her care and assundry items. Subsequently, November 2014 correspondence to the Veteran’s surviving spouse, dated shortly after her death, again referenced the July 2014 denial and noted VA would take no further action until certain VA Forms were received. Thereafter, the next correspondence is a January 2016 statement from the Appellant, with attached VA 21-601, Application for Accrued Amounts Due a Deceased Beneficiary, in which she reported that her mother, the Veteran’s surviving spouse, had died in November 2014, and that she was continuing her mother’s claim from July 2012. 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. An application for accrued benefits must be filed within one year after the date of the beneficiary’s death. 38 U.S.C. § 5121 (a), (c); 38 C.F.R. § 3.1000 (a), (c). These rules apply to both Veteran beneficiaries and other eligible beneficiaries, including after the Veteran’s death. As pertinent to this case, upon the death of a Veteran, accrued benefits may be paid to the Veteran’s surviving spouse, children, or dependent parents, in that order, to the first living person. 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). 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 deceased surviving spouse, and older than 23 years of age, as she reported in the January 2016 VA 21-601 that she was born in April 1949. Further the record does not reflect the Appellant became permanently incapable of self-support prior to attaining 18 years of age. Therefore, she is not an eligible claimant in this case. Id. 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. However, the Appellant has not made such a claim. Specifically, in her January 2016 VA 21-601 she did not list any expenses related to the Veteran’s surviving spouse’s last sickness or burial. As the Appellant has submitted no evidence to show she paid the surviving spouse’s expenses of last sickness or burial, the Board has no choice but to find that the Appellant did not bear such expenses and, therefore, find that payment of accrued benefits is not warranted on that basis. The Board will also address the Appellant’s other arguments, although her lack of standing as an eligible claimant is determinative in this case. Specifically, in her August 2016 notice of disagreement and December 2016 substantive appeal, the Appellant reported, in part, that when her mother passed away, she called and informed VA that her mother had passed away, but was told that the claim was now closed due to the death of her mother, and thus, she did not take any further action. She stated she was not told about filing a beneficiary form. She further described that 2015 came and went without her contacting VA as she was grieving the loss of her mother, but at the start of 2016, she could not let this matter go, so she contacted VA and was informed to file a beneficiary claim which she subsequently did and which forms the basis of the present appeal. In this regard, the RO also denied the Appellant’s claim, in part, because her claim for accrued benefits, received in January 2016, as well as a claim for substitution, received in April 2016, were not timely in that they were not received within the one year period after the death of the Veteran’s surviving spouse in November 2014. 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). As discussed, the record reflects the Appellant’s January 2016 claim for accrued benefits owed to her mother, as the Veteran’s surviving spouse, as well as an April 2016 claim for substitution, which was denied but not appealed, was received more than one year after her death. The Appellant does not argue otherwise, focusing instead on her contention that she was not informed by VA personnel at the time of her mother’s death that she needed to file to claim within a year. In this regard, the Board is sympathetic to the Appellant’s report that she was not informed of the applicable law. However, there are no provisions in the law that would grant the Appellant the relief that she seeks as it is well established that erroneous action or advice given by a government employee cannot be used to estop the government from denying benefits. See Johnson v. Brown, 9 Vet. App. 369, 377 (1996); Bone v. Brown, 9 Vet. App. 446 (1996); Owings v. Brown, 8 Vet. App. 17, 23 (1995); McTighe v. Brown, 7 Vet. App. 29, 30 (1994). The Board has also considered the doctrine of equitable tolling. The United States Court of Appeals for Veterans Claims has held that deadline for filing the Substantive Appeal is subject to equitable tolling. Hunt v. Nicholson, 20 Vet. App. 519, 524 (2006). However, equitable tolling has been held to be inapplicable to issues involving effective dates under 38 U.S.C. § 5110. See Andrews (Holly) v. Principi, 351 F.3d 1134, 1137-38 (Fed. Cir. 2003). This case turns on when or if a claim was timely filed, rather than whether an appeal period might be tolled. Accordingly, relief under this doctrine is not warranted. Finally, as a matter of law, claims do not survive a claimant’s deaths. Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996). Therefore, the Veteran’s surviving spouse’s claim for VA death pension benefits, most recently received in September 2014, and her entitlement to payment thereof, died with her. Upon her death, any VA benefits that were due to her, but not paid, do not become part of her estate to be inherited by her heirs. Instead, VA law limits those who are eligible to receive such funds to essentially those who were dependent upon the payee at the time of death. See 38 C.F.R. § 3.1000. As discussed, as the Appellant is an adult child of the Veteran’s surviving spouse, she does not meet the definition of “child” in the regulation and, therefore, entitlement to accrued benefits other than reimbursement of final expenses is not warranted as a matter of law. Moreover, she has not submitted argument or evidence to establish entitlement to accrued benefits based on reimbursement of final expenses. Although the Board is sympathetic to the Appellant for the death of her mother, the law is controlling in this case and prohibits payment of accrued benefits to anyone but a payee’s dependents with the one exception as discussed. The Board is bound by the laws and regulations applicable to the benefit sought. 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). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Espinoza, Counsel