Citation Nr: 20004061 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 18-44 496 DATE: January 16, 2020 ORDER An effective date prior to May 1, 2016, for the award of Dependency and Indemnity Compensation (DIC) benefits is denied. Entitlement to an increased evaluation for DIC benefits denied. Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. The Veteran died in May 2016. 2. The appellant filed an application for DIC benefits on June 10, 2016, and the Regional Office (RO) granted DIC benefits effective, May 1, 2016. 3. The evidence does not demonstrate that the appellant is in need of aid and attendance, resides in a nursing home, blind, permanently housebound, and/or has any children below the age of 18. 4. At the time of the Veteran’s death, there were no VA benefits to which the Veteran was entitled, which were due and unpaid, and a claim for VA benefits was not pending at the time of the Veteran’s death. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to May 1, 2016 for the award of DIC benefits have not been met. 38 U.S.C. §§ 5107, 5110(d); 38 C.F.R. §§ 3.5, 3.152, 3.400. 2. The criteria for entitlement to an increased evaluation for DIC benefits have not been met. 38 U.S.C. §§ 1310, 1311; 38 C.F.R. §§ 3.5, 3.21. 3. The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. § 5121; 38 C.F.R. §§ 3.2, 3.3, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1967 to September 1969. He died in May 2016 and the appellant is his surviving spouse. In July 2019, the Board remanded the issues on appeal in order for the RO to issue a statement of the case on entitlement to accrued benefits and an earlier effective date for DIC benefits, and to provide the appellant with notice of her rights to perfect her appeal. In September 2019, the RO issued a supplemental statement of the case and did not provide the appellant with the proper notice on perfecting her appeal. Therefore, although the appeal has not been perfected, in order to prevent confusion or prejudice to the appellant, the Board will take jurisdiction over these issues. See Percy v. Shinseki, 23 Vet. App. 37 (2009). 1. Entitlement to an effective date prior to May 1, 2016 for the award of DIC benefits The appellant is seeking an earlier effective date the award of DIC benefits. Generally, the effective date of an evaluation and award of pension, compensation or DIC based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Where a grant of death compensation or DIC is made on the basis of a veteran’s service-connected death after separation from service, the effective date will be the first day of the month in which the veteran’s death occurred, if the claim is received within 1 year from the date of death; otherwise, the effective date will be the date of receipt of the claim. 38 U.S.C. § 5110(d); 38 C.F.R. § 3.400(c)(2). After a detailed review of the evidence of record, the Board finds that an effective date prior to May 1, 2016 is not warranted. In this case, the Veteran died in May 2016. The appellant filed a claim for DIC benefits on June 10, 2016, and the RO subsequently awarded DIC benefits. Further, to the extent there is some dispute in the record regarding whether the RO assigned an effective date of May 1, 2016 or May 19, 2016 (the date of the Veteran’s death), the Board finds that the effective date is in fact May 1, 2016. In any event, the Board observes that the difference between the assignment of an effective date of May 1, 2016 or May 19, 2016, is inconsequential as the appellant was awarded the full DIC benefits for May 2016 that was paid on June 1, 2016. See 38 C.F.R. § 3.31. As a result, there is no basis for finding an earlier effective date, and for these reasons, the preponderance of the evidence is against granting an effective date earlier than May 1, 2016, for the award of DIC. The benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to an increased evaluation for DIC benefits The appellant asserts that her DIC benefits should be at the same rate as the Veteran’s service-connected compensation benefits at the time of his death. DIC is payable to a veteran’s surviving spouse when the veteran dies from a service-connected disability. See 38 U.S.C. §§ 1310, 1311; 38 C.F.R. § 3.5(a). For deaths occurring on or after January 1, 1993, the monthly rate of DIC for the surviving spouse shall be the amount set forth in 38 U.S.C. § 1311(a)(1); however, from time to time, Congress authorizes cost of living adjustment for DIC benefits. See 38 C.F.R. § 3.10(b). Pursuant to 38 U.S.C. § 1311(a)(2) an increased DIC amount, commonly called “enhanced” DIC, will be paid by VA to the surviving spouse of a deceased veteran who, at the time of death, was in receipt of or was entitled to receive (or, but for the receipt of retired pay or retirement pay, was entitled to receive) compensation for a service-connected disability that was rated totally disabling for a continuous period of at least eight years immediately preceding death. See 38 U.S.C. § 1311(a)(2); 38 C.F.R. § 3.10 (c). In addition, the basic monthly rate of DIC will be increased by the amount specified in 38 U.S.C. § 1311(b) if the surviving spouse has children of a deceased veteran who are below the age of eighteen. The basic monthly rate will be increased by the amount specified in 38 U.S.C. § 1311(c) if the surviving spouse is a patient in a nursing home or blind, or so nearly blind or significantly disabled as to need or require the regular aid and attendance of another person. The basic monthly rate will be increased by the amount specified in 38 U.S.C. § 1311(d) if the surviving spouse is, by reason of disability, permanently housebound but does not qualify for the aid and attendance allowance under subsection (c). After a detailed review of the record, the Board finds that the appellant is not entitled to an increased amount of DIC benefits. In this regard, the record reflects that throughout the appeal period the appellant has received basic monthly rate of DIC for a surviving spouse as set forth in 38 U.S.C. § 1311(a)(2) (as the Veteran had a service-connected disability that was rated totally disabling for a continuous period of at least eight years immediately preceding death) with authorized cost of living adjustments which increased her monthly payments accordingly. Further, the appellant has not alleged, and the record does not show, that she is in need of aid and attendance, is in a nursing home, is blind, is permanently housebound, and/or has any children below the age of 18. Thus, a higher rate of DIC is not warranted on these bases. 38 U.S.C. § 1311 (b)-(f). In arriving at this conclusion, the Board specifically acknowledges the appellant’s contention that she should be paid the same amount that the Veteran was being paid prior to his death. Nevertheless, the rates of DIC payments are set by Congress and VA has no authority to pay any surviving family member an additional or different amount. Congress has not authorized VA to pay a surviving spouse the same amount of money a veteran was being paid prior to death. While sympathetic to the appellant’s claim, the law is dispositive, and the Board is bound by the law and regulations as written. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board is without authority to grant benefits simply because it might perceive a result to be more equitable. 38 U.S.C. § §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board further observes that “no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress.” See Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). Accordingly, as the appellant has properly been paid the correct amount that she was entitled, an additional payment is not warranted, and the claim must be denied as a matter of law. See Sabonis, 6 Vet. App. 430. 3. Entitlement to accrued benefits The appellant asserts that she is entitled to accrued benefits. Specifically, she asserts that the Veteran was entitled to special monthly compensation (SMC) based on the need for aid and attendance prior to his death. Upon the death of an individual receiving VA benefit payments, certain persons shall be paid periodic monetary benefits to which that individual was entitled at the time of death under existing ratings or decisions, or those based on evidence in the file at date of death, and due and unpaid. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000(a). 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. Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998). Application for accrued benefits must be filed within one year after the date of death. The Board finds that the appellant is not entitled to any accrued benefits. In this case, the Board observes that the Veteran was in receipt of VA disability compensation benefits. However, at the time of the Veteran’s death, all outstanding benefits were paid such that there were no VA benefits which were due and unpaid. Next, the Board notes that at the time of the Veteran’s death, the only claim he had pending was a claim for SMC. As an initial matter, to the extent the Veteran filed a timely substantive appeal in April 2013, for an earlier effective date for the grant of service connection for Parkinson’s disease, the Board finds that he withdrew this claim in his September 2013 correspondence. Regarding his SMC claim, the RO denied the Veteran’s claim in a November 2015 rating decision. The Veteran did not file a notice of disagreement (NOD), nor does the appellant assert otherwise. Indeed, there are no communications or correspondences from the Veteran since the issuance of the November 2015 rating decision. Further, although the appellant filed a DIC and accrued benefits claim after the Veteran’s death, she did not file a NOD to the November 2015 rating decision. In arriving at this conclusion, the Board observes that the appellant filed a NOD in May 2017, that disagreed with the RO’s June 2016 rating decision (relating to the payment amount and effective date of DIC benefits). Therefore, to the extent the appellant expressed her disagreement with the RO’s failure to award SMC to the Veteran, the Board finds that her May 2017 NOD is untimely. Based on the foregoing, this is a case where the law is dispositive. Although the Board is sympathetic to the appellant’s claim, the law is controlling in this case and accrued benefits is precluded because there were no VA benefits to which the Veteran was entitled, which were due and unpaid at the time of his death, and/or there was no claim for VA benefits pending at the time of the Veteran’s death. As such, the claim must be denied based on a lack of entitlement under the law. Mason v. Principi, 16 Vet. App. 129 (2002); Sabonis, 6 Vet. App. 426. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Meyer, Associate Counsel