Citation Nr: 21064203 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 16-27 551 DATE: October 19, 2021 ORDER Entitlement to accrued benefits is denied. FINDING OF FACT; 1. The Veteran died in September 2003. 2. At the time of his death, the Veteran had no pending claims for service connection or any other VA benefits. CONCLUSION OF LAW The criteria for accrued benefits are not met. 38 U.S.C. § 5121 (2012); 38 C.F.R. §§ 3.1000, 3.1010 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the United States Navy from September 1963 to September 1967, including service in the Republic of Vietnam. The Veteran died in September 2003. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2014 rating decision of the Department of Veterans Affairs (VA) Pension Management Center (PMC) in St. Paul, Minnesota. In April 2016, the PMC granted service connection for the Veteran's cause of death. In an April 2016 statement of the case, the PMC denied entitlement to accrued benefits because the Veteran did not have entitlement to disability compensation or a pending claim for disability compensation at the time of death. The appellant perfected a timely appeal. In March 2019, 6the appellant testified at a Board hearing. The claims file contains a copy of the hearing transcript. In August 2019, the Board remanded this case for additional evidentiary development; the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to Accrued Benefits The appellant asserts that she is entitled to accrued benefits. Upon the death of an individual receiving VA benefit payments, certain persons shall be paid periodic monetary benefits to which the deceased beneficiary was entitled at the time of death under existing ratings or decisions, or those based on evidence in the file at date of death, and due and unpaid. See 38 U.S.C. § 5121; 38 C.F.R. § 3.1000(a). Accrued benefits to which a Veteran was entitled at his or her death under existing ratings or decisions, or those based on evidence in file at the date of death, will, upon the death of the Veteran, be paid to the first living person listed as follows: to (i) his or her spouse; (ii) his or her children (in equal shares); (iii) his or her dependent parents (in equal shares) or the surviving parent. Upon the death of a surviving spouse, accrued benefits are to be paid to the Veteran's children. If there are no eligible listed survivors, only so much of the accrued benefit may be paid as may be necessary to reimburse the person who bore the expense of last sickness or burial of the beneficiary. 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a). Further, for entitlement 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). 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 not filed any claim for service connection prior to his death in September 2003. Throughout the pendency of the appeal, the appellant has insisted that the Veteran received SSA benefits prior to his death in September 2003 due to disability associated with treatments related to control of prolymphocytic leukemia. See, e.g., Hearing Transcript pp. 6-7. In both her testimony and throughout her correspondence, the appellant has been consistent in her contention as proven through SSA medical records that she is entitled to accrued benefits based on an earlier effective date for service connection for the Veteran's cause of death. See, e.g., May 1, 2019 Correspondence. SSA reported that the records of examination and claim for the Veteran's disability benefits were not longer available. However, the Appellant submitted an income tax document showing that the Veteran was receiving SSA benefits in 2003 and because he was 58 years of age at the time of his death, the benefits were not retirement benefits. Nevertheless, an application on a form jointly prescribed by the Secretary and the Commissioner of Social Security filed with the Social Security Administration on or after January 1, 1957, will be considered a claim for Chapter 13 death benefits by a survivor. 38 U.S.C. § 5105; 38 C.F.R. §§ 3.1, 3.153, 3.201. The RO granted entitlement to DIC because the Veteran's death was determined to have been caused by service. The appellant was granted Dependency and Indemnity Compensation (DIC) (a Chapter 13 benefit), effective the date of her application to SSA. This does not mean that the Veteran during his lifetime was granted service connection for the disability that caused his death. There is no provision that a claim for SSA benefits is a concurrent claim for disability compensation under Chapter 11 by a Veteran during his lifetime. The mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit. Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006). The file does not contain a claim by the Veteran for disability benefits prior to his death. The appellant also raised the issue of the applicability of the Nehmer line of court decisions that provide for earlier effective dates for service connection when a previous claim was denied because a particular disease was not considered for presumptive service connection. See 38 C.F.R. § 3.816. This provision is not applicable as there were no previously denied claims. Because there was no awarded compensation not paid or pending claims for disability benefits prior to his death, VA did not owe the Veteran any unpaid fund at the time of his death. While the Board empathizes with the appellant's loss, the law is dispositive in this matter. Consequently, the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994) (noting that when the law is dispositive of the claim, then the claim must, as a matter of law, be denied because of the absence of legal merit or lack of entitlement under the law). J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.