Citation Nr: 21065928 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 18-35 942 DATE: October 28, 2021 REMANDED Entitlement to accrued benefits is remanded. REASONS FOR REMAND The Veteran had honorable active military service from September 1969 to July 1971. The Veteran died in December 2016. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA)'s October 2017 decision. The appellant testified before the undersigned Veterans Law Judge at a virtual hearing in August 2020. The hearing transcript is associated with the claims file. Entitlement to accrued benefits Prior to his death, the Veteran was granted entitlement to VA non-service-connected disability pension benefits with special monthly pension effective August 12, 2016 in a September 2016 decision. He died in December 2016. Thereafter, in March 2017, the appellant filed for VA survivor's benefits on VA Form 21-534EZ. In addition, in June 2017, the appellant submitted a request for substitution as claimant (VA Form 21-0847) along with VA Forms 21-0516-1 and 21P-8416 and a statement in support of claim seeking additional veteran pension benefits for the one year prior to the effective date of the grant of the Veteran's pension benefits due to liberalizing legislation. In the October 2017 decision on appeal, entitlement to accrued benefits was denied finding that there were no accrued amounts available because there was no claim for Liberalizing Law period benefits received prior to the Veteran's death in December 2016. The appellant filed a notice of disagreement in November 2017 with the RO's decision contending that the liberalizing law information, along with the appellant's request for substitution, were received within the one-year time limit from the September 2016 award letter. In the April 2018 statement of the case, the RO continued to find that there was no claim pending, specifically one for additional veteran pension benefits during the liberalizing law period, at the time of the Veteran's death. The statement of the case also clarifies that the appellant's request for substitution was denied because there was no claim pending at the time of the Veteran's death. On her VA Form 9, the appellant continued to contend that her filings complied with the September 2016 letter and that there was a pending claim upon which accrued benefits and substitution could be based. At the August 2021 Board hearing, the appellant continued her contentions. A pending claim is one which has not been finally adjudicated. See 38 C.F.R. § 3.160(c) (2017). A claim is considered finally adjudicated if the expiration of the period in which to file a notice of disagreement has passed or there has been a disposition on appellate review. See 38 C.F.R. § 3.160(d) (2017). A claimant has one year from the issuance of a decision to file a notice of disagreement. See 38 C.F.R. § 20.302(a) (2017). Furthermore, for substitution purposes, an eligible person may request to substitute for the deceased claimant in a claim for periodic monetary benefits, or an appeal of a decision with respect to such a claim, that was pending before the agency of original jurisdiction (AOJ) or the Board when the claimant died. 38 C.F.R. § 3.1010(a) (2021). A claim is considered pending if the claimant had filed the claim with an AOJ but dies before the AOJ makes a decision on the claim or if, at the time of the claimant's death, the AOJ made a decision on the claim, but the claimant has not filed a notice of disagreement and the period for doing so has not expired. 38 C.F.R. § 3.1010(g)(1)(i). Initially, the Board notes that there is no question as to the appellant's status as the Veteran's surviving spouse. The claims file demonstrates that the RO recognized her as the Veteran's spouse in September 2016 and that his pension award included her as his dependent. As to the question of whether there was claim pending at the time of the Veteran's death, the Board finds that the RO inappropriately limited that question to whether the Veteran had a claim pending for additional benefits for the liberalizing law period and failed to consider whether there was any other claim or appeal pending at the time of his death. In the present case, the September 2016 decision was not final when the Veteran died as the time to file a notice of disagreement had not expired. Consequently, the Board finds that there was a claim pending at the time of the Veteran's death upon which the claims for accrued benefits and substitution could be based. Having found that there was a pending claim at the time of the Veteran's death, the Board finds that it must remand the appellant's claim for readjudication of her request for substitution and claim for accrued benefits. The Board notes that readjudication of the appellant's claim for accrued benefits should consider the appellant's claim that she is entitled to additional veteran pension benefits for the liberalizing law period of August 12, 2015 to August 31, 2016. The matters are REMANDED for the following action: Having found that the claim of entitlement to non-service-connected disability pension benefits with special monthly pension decided in the September 2016 decision remained pending at the time of the Veteran's death, readjudicate the appellant's request for substitution and claim for accrued benefits in light of that pending claim and provide her notice of the decision. In readjudicating her claim for accrued benefits, the appellant's entitlement to additional veteran pension benefits for the liberalizing law period of August 12, 2015 to August 31, 2016 should be considered. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.M. Kreitlow 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.