Citation Nr: 20028094 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 17-04 898A DATE: April 22, 2020 ORDER Entitlement to an increased portion of accrued benefits to C.W. and M.C. is denied. FINDING OF FACT The Veteran had three children at the time of his death. CONCLUSION OF LAW The criteria for an increased portion of accrued benefits to C.W. and M.C. have not been met. 38 U.S.C. § 5121; 38 C.F.R. § 3.816(f), 3.1000. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1957 to March 1986. The Veteran died in July 2008. In November 2011, the RO awarded the Veteran retroactive service-connected benefits for hypertensive heart disease and coronary artery disease with left ventricular hypertrophy, which resulted in accrued benefits because the Veteran had died in July 2008. There was no evidence of an eligible surviving spouse. There is documentation that the Veteran had two biological children and one adopted child at the time of his death. Birth certificates dated in October 1964 for M.K. (now M.C.) and July 1967 for C.K. (now C.W.) list the Veteran as the father for M.C. and C.W. An adoption decree dated in March 1964 reflects that J.K. was legally adopted by the Veteran at that time. As such, the accrued amount was divided in equal shares and each child was entitled to receive one-third of the total accrued amount payable. Appellants M.C. and C.W. (the Veteran’s biological children) contend that the Veteran’s accrued VA benefits should be divided solely between them and should not be shared with J.K. because J.K. is not a rightful heir to the Veteran’s estate under the Veteran’s will and because J.K. voluntarily relinquished all claims and responsibilities associated with the Veteran’s estate. A grant of increased benefits to the appellants (M.C. and C.W.) would result in a payment of a lesser benefit to J.K., the other claimed surviving adopted child of the Veteran. Thus, this case qualifies as a “simultaneously contested claim.” See 38 C.F.R. § 20.3(p). The record indicates that the special procedural regulations for simultaneously contested claims have been satisfied. 38 C.F.R. §§ 19.100-19.102; 38 C.F.R. §§ 20.500-20.504, 20.713. The law and regulations governing claims for accrued benefits state that, upon the death of a beneficiary, periodic monetary benefits to which he or she was entitled, on the basis of evidence in the file at the date of death (accrued benefits) and, due and unpaid, are payable to certain parties. 38 U.S.C. § 5121(a)(2)(B); 38 C.F.R. § 3.1000. Claims for accrued benefits must be made within one year of the death of the Veteran. 38 U.S.C. § 5121(c); 38 C.F.R. § 3.1000(c). There is no mechanism under law for VA to restrict payment of the Veteran’s retroactive accrued benefits to only certain children of the Veteran. Rather, the applicable regulation states that when “a Nehmer class member...dies prior to receiving payment of any such benefits, VA shall pay such unpaid retroactive benefits to the first individual or entity listed below that is in existence at the time of payment.” If the Veteran’s spouse is no longer “in existence,” payment shall be made to the Veteran’s “child(ren), regardless of age or marital status (if more than one child exists, payment will be made in equal shares, accompanied by an explanation of the division).” 38 C.F.R. § 3.816(f). An accompanying Note clarifies that “the term ‘child’ includes natural and adopted children.” Id. Review of the record indicates that the RO correctly implemented VA regulation when splitting the accrued benefits. VA regulation does not provide for consideration of the stipulations of the Veteran’s will when determining the appropriate recipients of the accrued Nehmer benefits but specifies that the children receive equal shares. The claim must be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Moreover, because the law, rather than the facts of the case, is controlling, the provisions of 38 U.S.C. § 5107(b) are not for application. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Snyder, 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.