Citation Nr: 21062195 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 18-22 584 DATE: October 6, 2021 ORDER Entitlement to accrued pension benefits is denied. Entitlement to the Veteran's month-of-death payment is denied. FINDINGS OF FACT 1. VA received a formal claim for pension benefits on February 7, 2017 and there is no evidence of any unadjudicated formal or informal claim for pension benefits prior to that date. 2. VA received an Intent to File for compensation benefits on February 17, 2017 and there is no evidence of any unadjudicated formal or informal claim for compensation benefits prior to that date, nor did the Veteran file a claim for compensation benefits after February 17, 2017 and prior to his death. 3. The Veteran died in February 2017, subsequent to the filing of his formal claim for pension benefits and Intent to File. 4. The Veteran was not owed money at the time of his death. CONCLUSIONS OF LAW 1. The criteria for the award of accrued benefits have not been met. 38 U.S.C. §§ 5101(a), 5110(a), 5112(a), 5121 (2012); 38 C.F.R. §§ 3.31(a), 3.400, 3.500(g)(1), 3.1000 (2020). 2. The criteria for entitlement to a month-of-death payment have not been met. 38 U.S.C. §§ 5112, 5310 (2012); 38 C.F.R. § 3.20 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1951 to March 1955. He died in February 2017. The Appellant is his surviving spouse. These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2017 decision which denied entitlement to accrued and month-of-death benefits. On the Appellant's April 2018 VA Form 9 (Appeal to the Board of Veterans' Appeals), she requested a Board videoconference hearing. In July 2021 correspondence, the Appellant, through her representative, indicated that she wished to withdraw her hearing request. Accordingly, her hearing request is deemed withdrawn. 38 C.F.R. § 20.704(e). The Board notes that the Appellant initiated a separate appeal for entitlement to burial benefits. VA issued a statement of the case (SOC) in January 2019; however, the Appellant did not file a substantive appeal. As such, that issue is not currently before the Board. Appeals are generally considered in docket number order but may be advanced on the docket for sufficient cause, which may include advanced age, serious illness, severe financial hardship, or administrative error resulting in a significant delay. 38 C.F.R. § 20.902. Given the Appellant's advanced age, the Board has advanced the case on the docket pursuant to 38 C.F.R. § 20.902. 1. Entitlement to accrued pension benefits. The Appellant contends that she is entitled to accrued pension benefits. Specifically, she contends that at the time of the Veteran's death, he had a pending pension claim which would have been granted had the Veteran lived. In this case, VA adjudicated the Appellant's claim for accrued pension benefits on the presumption that pension benefits would have been granted. See March 2018 Statement of the Case. Affording the Appellant the benefit of the doubt, the Board will presume the same. 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 or decisions or those based on evidence in the file at the date of death, and due and unpaid. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. In order to support a claim for accrued benefits, the Veteran or other payee must have had a claim pending at the time of his or her death for such benefits or else be entitled to them under an existing rating or decision. 38 U.S.C. §§ 5101(a), 5121(a); Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). Accrued benefits may only be awarded on the basis of the evidence in the file at the Veteran's date of death. See 38 C.F.R. § 3.1000(a). "Evidence in the file at date of death" means evidence in VA's possession on or before the date of the Veteran's death, even if such evidence was not physically located in the VA claims folder on or before the date of death. 38 C.F.R. § 3.1000(d)(4). Therefore, the evidence that will be considered by the Board in this case is limited to that which was in VA's possession up to the date of the Veteran's death in February 2017. Here, the Veteran filed VA Form 21-526 (Veteran's Application for Compensation and/or Pension) on February 7, 2017. He died on February [REDACTED], 2017. On February 27, 2017, the Appellant submitted a claim for accrued benefits. Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation 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. Here, the Veteran submitted his pension claim on February 7, 2017. A review of the record reveals that the Veteran previously filed a claim for pension benefits, which was denied in a January 2015 rating decision. The Veteran was notified of this decision by letter in January 2015 but did not appeal the January 2015 rating decision. Therefore, the January 2015 decision became final. There are no other unadjudicated formal or informal claims for pension benefits prior to February 7, 2017. Therefore, the earliest effective date for the award of pension benefits is February 7, 2017. With respect to the effective date for the start of payments of the Veteran's pension benefits, as applicable to this case, regardless of VA regulations concerning effective dates of awards, payment of monetary benefits based on original, reopened, or increased awards of compensation, pension or dependency and indemnity compensation may not be made for any period prior to the first day of the calendar month following the month in which the award became effective. 38 C.F.R. § 3.31(a). As explained above, February 7, 2017 is the earliest possible effective date for the award of the Veteran's pension benefits. Therefore, March 1, 2017 is the earliest date on which such benefits were payable. The last date of payment, in the event of a payee's death, is the last day of the month before the death. 38 U.S.C. § 5112(a); 38 C.F.R. § 3.500(g)(1). In this case, the Veteran died in February 2017. Therefore, the last date of payment of his pension benefits would be January 31, 2017. Since the Veteran died before payments of his pension benefits could legally begin, there were no due and unpaid pension benefits to which the Veteran (i.e., the payee) was entitled at the time of his death. Accordingly, there are no accrued pension benefits now payable to the Appellant. The Board acknowledges the Appellant's contention that the Veteran would have been awarded pension benefits prior to his death but as noted above, the controlling law and regulations provide that the effective date of the discontinuance of the benefit is January 31, 2017, the last day of the month before his death. 38 C.F.R. § 3.500(g)(1). In other words, a payee is not entitled to VA compensation, DIC, or pension benefits for the month in which they died. Consequently, the Veteran's death occurring in the same month that his entitlement to benefits arose essentially cancelled out his right to payment of VA nonservice-connected pension benefits for that month. As such, there is no entitlement to any unpaid pension benefits because the benefits do not exist to be paid and the Board must deny the claim as there are no existing accrued nonservice-connected pension benefits payable to the Appellant. The law is dispositive of the issue on appeal, and the Appellant's claim must be denied because of the absence of legal merit or entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Based on the undisputed facts of this case, the Appellant is not entitled to accrued pension benefits. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. The Board is sympathetic to the Appellant's argument but is bound by the law and is without authority to grant an appeal on an equitable basis. See 38 U.S.C. §§ 503, 7104. 2. Entitlement to the Veteran's month-of-death payment. The appellant contends she is entitled to the Veteran's month-of-death payment. The effective date of a discontinuance of compensation or pension by reason of death of a payee shall be the last day of the month before such death occurs. 38 U.S.C. § 5112(b)(1). An exception is available under 38 U.S.C. § 5310 which provides that a surviving spouse of a Veteran is entitled to a one-time benefit for the month of the Veteran's death if at the time of the Veteran's death, the Veteran was receiving VA compensation or pension, i.e., a month-of-death payment. 38 C.F.R. § 3.20(b). As discussed above, the Veteran was not entitled to the payment of pension benefits prior to March 1, 2017. The Board acknowledges that on February 17, 2017, the Veteran submitted an Intent to File for compensation benefits. However, he died on February [REDACTED], 2017, before a claim for compensation benefits could be filed. Thus, at the time of the Veteran's death, he was service-connected for left ear hearing loss, evaluated as noncompensable, and he was not in receipt of compensation benefits. As the Veteran would not have received payment of compensation or pension benefits for February 2017, the benefits do not exist to be paid as a month-of-death benefit and the Board must deny the claim. The law is dispositive of the issue on appeal, and the Appellant's claim must be denied because of the absence of legal merit or entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Based on the undisputed facts of this case, the Appellant is not entitled to a month-of-death benefit. The Board is sympathetic to the Appellant's argument but is bound by the law and is without authority to grant an appeal on an equitable basis. See 38 U.S.C. §§ 503, 7104. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.