Citation Nr: 20006536 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 15-38 614 DATE: January 27, 2020 ORDER Entitlement to accrued benefits is denied. FINDING OF FACT 1. The Appellant’s mother was the surviving spouse of the deceased Veteran and was eligible for VA death pension benefits. 2. The Appellant’s mother, the surviving spouse of the deceased Veteran, died on July 26, 2013. 3. The Appellant’s mother, the surviving spouse, did not have a pending claim at the time of her death; she was not owed any outstanding benefits at the time of her death. CONCLUSION OF LAW The criteria for entitlement to accrued benefits are not met. 38 U.S.C. § 1521 (2012); 38 C.F.R. § 3.1000 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran was inducted into active service in October 1942 and had active duty from November 1942 until March 1946. This matter comes before the Board of Veterans’ Appeals (Board) from a December 2013 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Appellant, who is the daughter of the deceased Veteran and his now deceased spouse, testified before the undersigned Veteran’s Law Judge (VLJ) at a 2019 videoconference. A transcript thereof is on file. 1. Entitlement to accrued benefits In this case, the Appellant seeks entitlement to accrued benefits owed to her mother, the surviving spouse, at the time of her death. The record evidence reflects that the Veteran died in March 2008. At his death, service connection was not in effect for any disability nor was there any pending claim for service connection for any disability, or for any VA compensation or benefit. The Veteran’s surviving spouse filed a claim for death pension benefits in April 2009. In a May 2009 rating decision, the Agency of Original Jurisdiction (AOJ) granted special monthly pension (SMP) based on the need for aid and attendance of another to the Veteran’s surviving spouse, effective April 2009. The surviving spouse was notified of that decision by a letter of the AOJ in June 2009. The surviving spouse died on July 26, 2013. By VA letter of December 3, 2013, the Appellant, the daughter of the deceased Veteran and the surviving spouse, was notified that based on information from the Social Security Administration (SSA) that the surviving spouse (the mother of the Appellant) had died on July 26, 2013, and that benefits payable to the surviving spouse were terminated effective July 1, 2013. The Appellant, the daughter of the deceased Veteran and his now deceased spouse, filed VA Form 21-0959, Notice of Disagreement (NOD), later in December 2013, and this appeal ensued. The Appellant testified before the undersigned Veteran’s Law Judge (VLJ) at a 2019 Board Hearing. She testified that her mother, who had been the surviving spouse of the deceased Veteran, had died on July 26, 2013, which was almost the whole month of July 2013. During that month the Appellant had had to pay, out-of-pocket, certain medical expenses for her ailing mother. Her mother had been in a coma for over two weeks before she died. She contends that she is entitled to reimbursement for the cost of medical expenses for her mother for those 26 days of July 2013, as she was the person who bore the expenses of her mother’s last sickness. The law provides for payment of certain accrued benefits upon the death of a beneficiary. 38 U.S.C. § 5121. Period monetary benefits under the laws administered by the Secretary to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death and due and unpaid, shall, upon the death of the beneficiary, be paid to the living person first listed below: (A) the Veteran’s spouse; (B) the Veteran’s children (in equal shares); (C) the Veteran’s dependent parents (in equal shares). 38 U.S.C. § 5121(a)-(a)(2); 38 C.F.R. § 3.1000(a). In all other cases, only so much of the accrued benefits may be paid to as may be necessary to reimburse the person who bore the expenses of the last sickness and burial. 38 U.S.C. § 5121(a)(6). The term “child” for purposes of benefits under Title 38 of the United States Code is specifically defined. For eligibility under Title 38, a “child” must be unmarried and must be either under the age of 18, have become permanently incapable of self-support before reaching the age of 18, or between the ages of 18 and 23 and pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101(4)(A); 38 C.F.R. §§ 3.57(a)(1), 3.315. As relevant to this case, the record does not reflect nor does the Appellant allege that she is an eligible child based on her relationship as the daughter of the deceased, surviving spouse. Additionally, at the time of her death, the surviving spouse was in receipt of widow’s pension and aid and attendance benefits. As previously noted, the record reflects that the surviving spouse died on July 26, 2013, and that VA terminated her benefits effective July 1, 2013. 38 U.S.C. § 5112(a), (b)(1) (the effective date of the discontinuance of pension by reason of death of the payee shall be the last day of the month before such death occurred); 38 C.F.R. § 3.500(g) (same effect). Consistently, the record reflects that there was no claim pending at the time of the surviving spouse’s death; and, the surviving spouse was not entitled to any unpaid benefits at the time of her death. The Board is certainly not unsympathetic to the Appellant’s claim. She maintains that over the last weeks before her mother’s passing, she paid out-of-pocket medical expenses for her ailing mother. The Board observes that had there been available funds owed to the surviving spouse at the time of her death, the Appellant would be eligible to claim those funds with the submission of evidence showing that she bore the cost of her mother’s last sickness. However, absent a pending claim or evidence of additional benefits owed at the time of the surviving spouse’s death, there is no entitlement to unpaid benefits because the benefits do not exist to be paid, and accordingly the Board must deny entitlement to accrued benefits. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fussell, 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.