Citation Nr: A21016677 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 210720-173219 DATE: October 13, 2021 ORDER Entitlement to accrued benefits is denied. REMANDED Entitlement to dependency and indemnity compensation is remanded. Entitlement to death pension is remanded. FINDING OF FACT The weight of evidence is against a finding that at the time of his death, the Veteran had a pending claim of entitlement to VA benefits. CONCLUSION OF LAW The criteria for accrued benefits have not been met. 38 U.S.C. § 5121 (2002); 38 C.F.R. § 3.1000 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1969 to November 1970. The Veteran died in May 2020. The appellant was married to the Veteran on the day of his death. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2021 determination of a VA RO. In a VA Form 10182 (decision review request: Board appeal (notice of disagreement)) received in July 2021, the appellant selected the evidence-submission option for the Board appeal. In an April 2021 determination, a VA RO denied entitlement to dependency and indemnity compensation, death pension, and accrued benefits. The appellant was notified of that decision but did not appeal that decision. In May 2021, the appellant filed a supplemental claim on those three issues, specifically survivor benefits. In the June 2021 determination, the VA RO denied a claim for survivor benefits. The Board construes the June 2021 denial of entitlement to survivors benefits as a denial of the issues of entitlement to dependency and indemnity compensation, death pension, and accrued benefits, that is all issues pertaining to survivor benefits. The June 2021 determination adjudicated these claims on their merits rather than whether new and relevant evidence had been submitted to warrant readjudication. As such, the Board concludes that there was an implicit finding of new and relevant evidence. An implicit finding of new and relevant evidence to warrant readjudication is a favorable finding by the AOJ and the Board will proceed to the address these claims on their merits. See 38 U.S.C. § 5104A (2012); 38C.F.R. §3.104(c) (2021). VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Neither the appellant nor her representative has raised any issues with the duty to notify or duty to assist. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). 1. Entitlement to accrued benefits Governing law and regulations A veteran's spouse will be paid periodic monetary benefits to which a veteran was entitled to at his or her death under existing ratings or those based on evidence in the file at the time of death, and are due and unpaid. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000(a). Put another way, 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 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). A spouse means the surviving spouse of a veteran, whose marriage meets the requirements of 38 C.F.R. § 3.1(j) (2021) or 38 C.F.R. § 3.52 (2021). Where the marriage meets the requirements of 38 C.F.R. § 3.1(j), date of marriage and continuous cohabitation are not factors. 38 C.F.R. § 3.1000(d)(1) (2021). 38 C.F.R. § 3.1(j) means a marriage valid under the law of the place where the parties resided at the time of the marriage, or the law of the place where the parties resided when the right to benefits accrued. Evidence in the file at date of death means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death, in support of a claim for VA benefits pending on the date of death. 38 C.F.R. § 3.1000(d)(4) (2021). Claim for VA benefits pending on the date of death means a claim filed with VA that had not been finally adjudicated by VA on or before the date of death. 38 C.F.R. § 3.1000(d)(5) (2021). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). A claimant may indicate an intent to file a claim for benefits by submitting an intent to file a claim to VA. Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives the application form within one year of receipt of the intent to file a claim, VA will consider the completed claim filed as of the date the intent to file a claim was received. 38 C.F.R. § 3.155(b) (2021). An oral statement of intent to file a claim will be accepted if it is directed to a VA employee designated to receive such a communication, the VA employee receiving this information follows the provisions set forth in 38 C.F.R. § 3.217 (2020), and the employee documents the date VA received the claimant's intent to file a claim in the claimant's records. 38 C.F.R. § 3.155(b)(1)(iii) (2020). An intent to file a claim must identify the general benefit (for example, compensation) but need not identify the specific benefit claimed or any medical conditions on which the claim is based. 38 C.F.R. § 3.155(b)(2) (2021). Analysis In December 2020, the appellant submitted a copy of the marriage certificate showing that she and the Veteran were married in June 2019. There is no indication that the marriage was not valid under the law of the place where the parties resided at the time of the marriage, or the law of the place where the parties resided when the right to benefits accrued. 38 C.F.R. § 3.1(j). The Board notes that accrued benefits claims, unlike claims for dependency and indemnity compensation and death pension, do not require that a surviving spouse of a veteran be married to that veteran for (a) one year or more, or (b) for any period of time if a child was born of the marriage, or was born to them before the marriage. Therefore, the appellant is the Veteran's spouse for purposes of accrued benefits. At the time of his death, the Veteran was receiving nonservice-connected pension benefits at the rate for a veteran with no dependents. There is no indication that nonservice pension benefits at the rate for a veteran with no dependents were due and unpaid. In a December 2019 letter, the RO stated that nonservice-connected pension benefits were payable in the amount of $1,146. In a May 2020 letter dated after the date of the Veteran's death, the RO informed the Veteran's estate that payments would be suspended effective June 1, 2020. The question is whether the Veteran had any pending claims at the time of his death. The appellant and her representative have not identified any pending claims at the time of the Veteran's death based on the evidence of record at the time of the Veteran's death. In October 2019, the Veteran submitted a VA Form 21-2680 (examination for housebound status or permanent need for regular aid and attendance). The form shows that the appellant was identified as the claimant. The form also reflects that the appellant was applying for special monthly compensation based on the permanent need for regular aid and attendance. The Veteran did not have any service-connected disabilities. Therefore, the RO interpreted the October 2019 VA Form 21-2680 as a claim for special monthly pension for a surviving spouse based on housebound status or need for aid and attendance rather than a claim for special monthly compensation for a surviving spouse based on housebound status or need for aid and attendance. In a November 2019 determination, the RO denied entitlement to special monthly pension for a surviving spouse based on housebound status or need for aid and attendance on the basis that a living spouse is not entitled to a special monthly pension benefit. Regarding that determination, the Veteran did not file a supplemental claim, request a higher-level review, or file an appeal to the Board. Thus, there was no pending claim at the time of the Veteran's death regarding special monthly pension for a surviving spouse. In the October 2019 VA Form 21-2680, the Veteran reported that he was married. A review of the claims file reveals that there was no formal claim for additional nonservice-connected pension benefits based on having merely having a dependent spouse, or written or oral intent to file a claim for additional nonservice-connected pension benefits based on merely having a dependent spouse. The appellant and her representative have not identified any document of record in the claims file at the time of the Veteran's death indicating an intent to claim additional nonservice-connected pension benefits based on merely having a dependent spouse or any intent to file a claim for pension in general for the Veteran as opposed to pension for the appellant. In the November 2019 letter to the Veteran denying the special monthly pension claim for the appellant, the RO provided additional benefits information stating what forms the Veteran needed to complete to report a change in household income and to obtain additional benefits for a spouse. The Veteran did not submit a VA form 21-686c, declaration of status of dependents. As noted above, the October 2019 VA Form 21-2680 pertains to a claim for pension benefits for a surviving spouse and not for additional pension benefits for the Veteran. Even if the October 2019 VA Form 21-2680 could be construed as a claim for additional nonservice-connected pension benefits based on having a dependent spouse, the evidence of record at the time of the Veteran's death does not show that there was documentation showing that the Veteran and appellant had gotten married in June 2019. 38 C.F.R. § 3.401 (2021). In that regard, the marriage certificate was not of record at the time of the Veteran's death. The marriage certificate was not of record until December 2020 when the appellant submitted it to VA in conjunction with her claim. Moreover, there was no income information of record at the time of the Veteran's death regarding the appellant to show whether the Veteran and the appellant's income exceeded the maximum income to be entitled to nonservice-connected pension benefits for a veteran and a dependent spouse. 38 C.F.R. § 3.261 (2021). In the absence of the marriage certificate being of record at the time of the Veteran's death and income information, entitlement to additional nonservice-connected pension benefits based on having a dependent spouse could not have been established at the time of the Veteran's death based on the evidence of record at the time of his death. The appellant has submitted evidence suggesting that she and the Veteran had a common-law marriage prior to their marriage in June 2019. This evidence was not of record at the time of the Veteran's death and, thus, cannot be considered in determining whether the Veteran had a pending claim for additional nonservice-connected pension benefits based on a dependent spouse and whether such a claim should have been granted at the time of his death. The weight of evidence is against a finding that at the time of his death, the Veteran had a pending claim of entitlement to VA benefits. The preponderance of evidence is against the claim, and it is denied. REASONS FOR REMAND Two issues are being remanded to correct a duty-to-assist error that occurred prior to the June 2021 determination on appeal. An April 2006 VA treatment record reflects that the Veteran was "married and accompanied by his wife" and that "[t]hey have one child, age 25." In her December 2020 application for DCI, survivors pension, and/or accrued benefits, the appellant reported that a child was born to the Veteran and her during their marriage or prior to their marriage. Dependency and indemnity compensation and death pension may be paid to a surviving spouse of a veteran who was married to that veteran for (a) one year or more, or (b) for any period of time if a child was born of the marriage, or was born to them before the marriage. The term born to them before marriage means a birth prior to the date of such marriage. 38 C.F.R. § 3.54 (2021). The RO should have asked the appellant to provide evidence on whether a child was born to the Veteran and the appellant prior to the date of their marriage. The matters are REMANDED for the following action: Ask the appellant to provide evidence, such as a birth certificate, of any child born to the Veteran and the appellant prior to the date of their marriage. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Cherry, 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.