Citation Nr: 21001167 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 17-07 805 DATE: January 7, 2021 ORDER The claim for entitlement to accrued benefits, to include whether the application for accrued benefits was timely, is denied. FINDING OF FACT The appellant’s claim for accrued benefits was received by VA in March 2014, over a year after the Veteran’s October 2011 death and VA’s December 2011 request for an application. CONCLUSION OF LAW The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. §§ 101, 5121; 38 C.F.R. §§ 3.152(a), 3.1000. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1998 to March 1998 and from February 1999 to October 2001. The Veteran died in October 2011. The appellant is the Veteran’s surviving parent. 1. Entitlement to accrued benefits, to include whether the application for accrued benefits was timely. The appellant essentially contends that he filed a timely accrued benefits claim. Accrued benefits are periodic monetary benefits or monthly benefits (other than insurance and servicemen’s indemnity) to which an individual was entitled at death under existing ratings or decisions and under laws administered by the VA Secretary, or those based on evidence in the file at date of death and due and unpaid will, upon the death of such individual, be paid to the surviving spouse or other appropriate party. 38 U.S.C. § 5121. For an appropriate party to be entitled to accrued benefits, the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. See Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998); Taylor v. Nicholson, 21 Vet. App. 126, 128-29 (2007). In addition, the application for accrued benefits must be filed within one year after the date of death. 38 U.S.C. § 5121(c); 38 C.F.R. § 3.1000(c). The Veteran had a pending claim at the time of his death. He had filed a claim for service connection for a heart disorder, which the regional office (RO) denied in a June 2011 rating decision. In September 2011, he filed a notice of disagreement. Unfortunately, the Veteran passed away in October 2011. His representative notified VA of his death later that month. As there was a pending claim at the time of the Veteran’s death, the question before the Board is whether there was an application for accrued benefits filed within one year after the date of death. 38 U.S.C. § 5121(c); 38 C.F.R. § 3.1000(c). In November 2011, the appellant, through his then representative Veterans Service Organization (VSO), filed an informal claim for “S/c the cause of Death.” In December 2011, VA informed the appellant that it had received his November 2011 informal claim, but “we cannot process the claim at this time.” VA explained that for a Dependency and Indemnity Compensation (DIC) claim, he must complete the enclosed application (VA Form 21-535) and requested a copy of the Veteran’s death certificate. It also indicated that “You can take up to a year from the date we received your informal claim to protect your date of claim. If we receive it after this time period, it must be considered a new claim.” VA appears to have sent two copies of this letter, with enclosed DIC applications, one copy was dated December 8, 2011 and the other December 9, 2011. Copies of the letters were also provided to the appellant’s VSO representative. The prescribed VA application form for DIC benefits included VA Form 21-535, Application for Dependency and Indemnity Compensation by Parents. VA provided the appellant (and his representative) this form in December 2011. Neither the appellant nor his representative responded to the application request. “A specific claim [for death benefits] in the form prescribed by the Secretary…must be filed in order for death benefits to be paid to any individual under the laws administered by VA.” 38 C.F.R. § 3.152(a). Additionally, application for accrued benefits must be filed within 1 year after the date of death. 38 C.F.R. § 3.1000(c). Here, the appellant did not file a claim for death benefits on an official form until the one received by VA in March 2014. That application was dated by the appellant in December 2013. As the appellant’s claim for accrued benefits was received more than one year after the Veteran’s October 2011 death, it may not be considered timely. 38 U.S.C. § 5121(c); 38 C.F.R. § 3.1000(c). The Board acknowledges that the December 2011 letters from VA were slightly misleading in indicating that the appellant “can take up to a year from the date we received your informal claim to protect your date of claim.” In fact, as noted above, applications for accrued benefits must be filed within a year of the Veteran’s death. 38 C.F.R. § 3.1000(c). To the extent that the appellant may be claiming detrimental reliance on any such inaccuracy, the burden of demonstrating detrimental reliance is on the appellant. See Jernigan v. Shinseki, 25 Vet. App. 220, 229 (2012) (concluding that the record did not “support any assertion that the notice lulled the appellant into failing to act,” and thus there was no “demonstrable prejudice” (quoting Edwards v. Peake, 22 Vet. App. 29, 35 (2008)) (citing Shinseki v. Sanders, 556 U.S. 369, 409 (2009)) (internal quotations omitted); see also Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th Cir. 1995) (holding that a plaintiff must demonstrate reliance on the defective notice). No such argument has been clearly made by the appellant. The Board thus does not find a credible or reasonable link between the slightly misleading language of the letter and the appellant’s decision not to pursue the claim or provide the requested application. In reaching this decision, the Board acknowledges the appellant’s October 2020 Board hearing testimony wherein he indicated that after his son’s death VA did not make any effort to assist him and he believed that he was continuing his son’s pending claim following his death. The record is clear, however, that VA provided two notifications to the appellant of how to file a claim for death benefits, including accrued benefits, in December 2011. VA also provided that information to his representative. The Board is sympathetic to the appellant’s perceived lack of help following the Veteran’s untimely death. However, the record reflects that he did not submit an application until well over a year after the Veteran’s death (and indeed well over a year after the appellant’s November 2011 informal claim and the December 2011 VA request for an application), and he does not dispute this fact. The law pertaining to eligibility for accrued benefits is dispositive of this issue, and the appellant’s claim for accrued benefits must be denied because of the absence of legal merit or entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lindio 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.