Citation Nr: 20009816 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 19-19 153 DATE: February 6, 2020 ORDER Entitlement to retroactive payment of Dependency and Indemnity Compensation (DIC) benefits is denied. FINDING OF FACT The Department of Veterans Affairs (VA) received the appellant’s claim for DIC benefits in April 2018, more than one year following the Veteran’s death in July 2008. CONCLUSION OF LAW The criteria for entitlement to DIC have not been met. 38 U.S.C. §§ 101, 5121; 38 C.F.R. §§ 3.1000. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1975 to January 1976. The appellant in the Veteran’s surviving son. Where a veteran dies in service, from a service-connected or compensable disability, VA shall pay DIC to the veteran’s surviving spouse, children, and parents. 38 U.S.C. §§ 1310, 1312, 1316. A surviving child is entitled to DIC where there is no surviving spouse. 38 U.S.C. § 1313(b). A claim for death pension, compensation or DIC, by a surviving spouse, child, parent, or apportionee, is deemed to include a claim for any accrued benefits. 38 C.F.R. § 3.152(b), 3.1000(c). Accrued benefits are defined as “periodic monetary benefits... authorized under law administered by [VA], to which a payee was entitled at his or her death under existing ratings for decisions or those based on evidence in the file at the date of death, and due and unpaid....” 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a). An application for accrued benefits is required to be filed within one year after the date of death. 38 U.S.C. § 5121(c); 38 C.F.R. § 3.1000(c). See Shields v. Brown, 8 Vet. App. 346, 348-49 (1995). Analysis The appellant is seeking to obtain retroactive DIC benefits based on his status as a surviving child. The Veteran died in July 2008. In September 2008, his surviving spouse, L.B., filed a claim for DIC, death pension, and/or accrued benefits. The claim was granted in October 2008. The Notification Letter informed L.B. that she was also awarded additional benefits for the appellant. However, in an April 18, 2018 Notification Letter to L.B., VA noted that L.B. was not the appellant’s biological or adoptive mother, or stepmother. Therefore, she was not entitled to receive an additional allowance for the appellant for the period from August 1, 2008, to March 17, 2015. L.B.’s award was reduced. On April 27, 2018, the appellant filed an application for DIC, death pension, and/or accrued benefits. He stated, from August 2008 to March 2015, he was possibly entitled to $271.00 in benefits; however, VA incorrectly paid the benefits to L.B. The appellant further stated that he never lived with L.B., and he did not receive DIC benefits from L.B. Therefore, he was entitled to retroactive benefits. In June 2018, the appellant’s claim was denied. In his June 2019 Substantive Appeal (Form 9), the appellant stated that VA failed in its duty to assist by not informing his guardian that he, the appellant, was eligible for DIC benefits. As such, he should be paid DIC retroactive benefits. Based on the evidence of record, the Board finds that the appellant’s application for DIC, filed on April 27, 2018, was not filed within one year of the Veteran’s death, i.e., the appellant’s application was filed approximately 12 years after the Veteran’s death. Accordingly, the application for benefits was not timely, and the claim must be denied as a matter of law. 38 U.S.C. § 5121(c); 38 C.F.R. § 3.1000(c). In his NOD, the appellant stated that he was unaware, and his guardian was not informed, that the appellant was eligible for benefits. The Board is sympathetic to the appellant, but the law and regulations provide no exceptions on these or any other basis. Morris v. Derwinski, 1 Vet. App. 260, 265 (1991) (“[R]egulations are binding on all who seek to come within their sphere, ‘regardless of actual knowledge of what is in the [r]egulations or of the hardship resulting from innocent ignorance.’’’) (quoting Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 385 (1947)). As there is no evidence that the appellant or his guardian filed a claim for benefits prior to April 2018, the application for benefits was not timely, and the claim fails on this basis alone. 38 U.S.C. § 5121(c); 38 C.F.R. § 3.1000(c). As the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore 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.