Citation Nr: 20003719 Decision Date: 01/15/20 Archive Date: 01/15/20 DOCKET NO. 18-07 091 DATE: January 15, 2020 ORDER Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. There were no pending claims at the time of the Veteran's death. 2. The Appellant’s claim for accrued benefits was not filed within the year following the Veteran’s death. 3. The Appellant is not an unmarried child under the age of 18. 4. The evidence does not show that the Appellant is an unmarried child who became permanently incapable of self-support before turning 18. CONCLUSION OF LAW The criteria for accrued benefits have not been met. 38 U.S.C. §§ 101, 5121; 38 C.F.R. §§ 3.57, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably on active duty from March 1943 to August 1945. He died in July 2007. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2015 rating decision of the Department of Veterans Affairs (VA) Pension Management Center (PMC) in Philadelphia, Pennsylvania. The Appellant is the Veteran’s biological daughter. In August 2014, VA received the Appellant’s completed Application for DIC, Death Pension and/or Accrued Benefits. The Appellant marked the box indicating that she was seeking only accrued benefits. With her application, she submitted a statement requesting two different kinds of compensation. Referencing 38 U.S.C. § 1151, she asked to be compensated because she believes that her father’s death resulted from negligence on the part of VA medical providers. She also requested money she believes her father was due at the time of his death. It is her position that, at the time of his death, her father was due additional compensation for his service-connected mental illness because VA had, in the past, failed to pay him what he should have been paid. In particular, she asserts that she should be paid money her father is owed for the more than 15 years during which his disability was rated non-compensable. The Appellant has referred to the money due her father as compensation for his disability as “backpay.” The Board finds that the Appellant has not submitted a valid claim for accrued benefits because neither of the amounts the Appellant seeks to recover are accrued benefits. Accrued benefits are periodic monetary benefits, to which a veteran was entitled at death, which are due and unpaid. 38 U.S.C. § 5121. An accrued benefit is not an amount due simply because a claimant asserts a reason why he or she should receive payment. As made clear by the regulation implementing 38 U.S.C. § 5121, due means due pursuant to (1) an existing rating decision; or (2) a rating decision issued after the veteran’s death based on claims pending at the time of the veteran’s death and “evidence in the file at date of death.” 38 C.F.R. § 3.1000. At the time of the Veteran’s death, the only rating decision in effect was the rating decision awarding him compensation for his mental illness. That amount was paid to his surviving spouse at the time of his death. At the time of the Veteran’s death, there were no claims pending for any amounts of money, including the two kinds of payments sought by the Appellant. Further, for a claimant to prevail on a claim for accrued benefits, he or she must have standing to file such a claim and must file it within a year of the veteran’s death. Unlike the Veteran’s surviving spouse at the time of his death, the Appellant does not have standing to file a claim for accrued benefits. Although 38 U.S.C. § 5121 provides for the payment of accrued benefits to a veteran’s child under some circumstances, for purposes of accrued benefits, “child” only includes an unmarried child who is either under the age of 18 or who became permanently incapable of self-support before turning 18. See 38 U.S.C. § 101(4)(A). The Appellant was born in 1955. She has not alleged that she is unmarried or became permanently incapable of self-support before turning 18. The Appellant did not file her claim within a year of the Veteran’s death. The Appellant has characterized her claim as a claim for accrued benefits pursuant to 38 U.S.C. § 1151. However, a claim for accrued benefits under 38 U.S.C. § 1151 is a claim brought by a veteran alleging that he had suffered additional disability due to the negligence of VA medical care. That is the only kind of claim under 38 U.S.C. § 1151(a) which could be pending at the time of a veteran’s death. The benefit payable under 38 U.S.C. § 1151(a) to eligible survivors alleging VA negligence caused a veteran’s death is dependency and indemnity compensation. 38 C.F.R. § 3.361(g)(2). However, a claim for DIC brought by the Appellant would also fail for lack of standing. The Appellant is not an eligible survivor because she does not meet the definition of child under 38 U.S.C. § 101(4)(A). Finally, concerning her claim for “back pay,” the Appellant states she prepared a claim for the unpaid benefits which her father signed on December 25, 2006 and she personally mailed. The file contains no such claim. The Board further advises the Appellant that, had such a claim been pending at the time of the Veteran’s death, it would have been denied because rating decisions not appealed within a year become final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The VA compensation system claim does not provide compensation for the Appellant’s claims. The Appellant’s claim for accrued benefits is denied. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.