Citation Nr: 21070722 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-00 009A DATE: November 24, 2021 ORDER Entitlement to an effective date earlier than September 8, 2002, for the award of service connection for the cause of the Veteran's death for accrued benefits purposes is denied. The appellant is not eligible for substitution as the claimant in a February 2004 appeal seeking entitlement to an effective date earlier than September 8, 2002, for the award of service connection for the cause of the Veteran's death. FINDINGS OF FACT 1. The Veteran's widow died on August [REDACTED], 2006; she had an active appeal pending at the time of her death seeking entitlement to an earlier effective date for the award of service connection for the cause of the Veteran's death. 2. The appellant filed her accrued benefits claim in July 2014, more than seven years following the death of the Veteran's widow. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than September 8, 2002, for the award of service connection for the cause of the Veteran's death for accrued benefits purposes have not been met. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. 2. The criteria for eligibility as a substituted claimant in a February 2004 appeal seeking entitlement to an effective date earlier than September 8, 2002, for the award of service connection for the cause of the Veteran's death have not been met. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from April 1958 to April 28, 1961, and from April 30, 1961 to November 1977. The Veteran died in April 1997. In a November 2003 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for the cause of the Veteran's death effective September 8, 2002. In a February 2004 statement, the Veteran's widow disagreed with the effective date assigned by the November 2003 rating decision. In November 2005, a Statement of the Case (SOC) was issued continuing the denial of the earlier effective date claim. In January 2006, another SOC was issued characterizing the issue on appeal as entitlement to an increased rate of Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1311. In January 2006, the Veteran's widow submitted a VA Form 9 appealing this issue to the Board. This appeal was never certified to the Board. In a June 2006 hearing before the AOJ, the issue on appeal was clarified to be entitlement to an earlier effective date for DIC benefits, and the Veteran's widow was issued a Supplemental Statement of the Case (SSOC) in October 2006 reflecting the latest characterization of the issue on appeal. In January 2020, the present appellant, the Veteran's daughter, testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is in the record. This matter was previously before the Board in April 2021, at which time the above-noted issues were remanded to obtain a copy of the death certificate of the Veteran's widow and to readjudicate the issues on appeal. All relevant development requested by the Board's remand has been conducted. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board will therefore proceed with adjudication. 1. Entitlement to an effective date earlier than September 8, 2002, for the award of service connection for the cause of the Veteran's death for accrued benefits purposes The current appellant in this appeal is the Veteran's daughter. She asserts that she is entitled to any accrued benefits owed to her mother, the Veteran's widow, who died in August 2006. Accrued benefits are "periodic monetary benefits... authorized under law administered by [VA], to which a payee was entitled at his or her death under existing ratings for decisions or those based on evidence in the file at the date of death, and due and unpaid...." 38 U.S.C. § 5121 (a); 38 C.F.R. § 3.1000 (a). An "[a]pplication for accrued benefits must be filed within one year after the date of death." 38 C.F.R. § 3.1000 (c). By statute, the appellant takes the claims as they stood on the date of the death of the prior claimant. Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996). For entitlement to accrued benefits, the prior claimant must have had a claim pending at the time of death for such benefits or else be entitled to them under an existing rating or decision. 38 U.S.C. § 5121 (a); 38 C.F.R. § 3.1000 (a); Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). Critically, however, an application for accrued benefits must be filed within 1 year after the date of the prior claimant's death. 38 C.F.R. § 3.1000 (c). In this case, the Veteran's widow had a perfected appeal pending at the time of her death which sought an earlier effective date for the award of service connection for the cause of the Veteran's death. However, the current appellant filed a claim for VA Form 21-601 (Application for Accrued Amounts Due a Deceased Beneficiary) in July 2014, more than seven years after the August 2006 death of the Veteran's widow. In this matter, basic eligibility for accrued benefits is denied. Under certain circumstances, a statutory filing period may be equitably tolled. See Santana-Venegas v. Principi, 314 F.3d 1293 (Fed. Cir. 2002). The first is where the claimant actively pursued the claim, but it was defective; such has not been alleged or shown in this case. The other is where the claimant has been "induced or tricked" by, in this case, VA's, misconduct into allowing a deadline to pass. Here, there was no misconduct on the part of VA; any misconduct or negligence by any party in failing to notify the appellant of her potential entitlement to VA benefits could not legally obligate VA to extend the statutory deadlines. Equitable tolling has also been expanded to apply where the claimant's "failure to file was the direct result of a mental illness that rendered him or her incapable of 'rational thought or deliberate decision making.'" Barrett v. Principi, 363 F.3d 1316 (2004). No allegations or indications of such mental incapacity have been advanced. For the foregoing reasons, entitlement to accrued benefits is not warranted. The appellant's appeal must therefore be denied as a matter of law, and the benefit of the doubt doctrine is thus not for application. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Eligibility as substituted claimant In April 2021, the Board remanded the issue of whether the appellant was eligible for substitution as a claimant in her mother's pending appeal. At the time of the prior remand, the date of death of the Veteran's widow was not confirmed. Subsequently, a death certificate was submitted verifying that she died on August [REDACTED], 2006. Because the Veteran's widow died prior to October 10, 2008, substitution is not an available basis for a survivor's claim for benefits based on claims pending at the time of the Veteran's death. Only an accrued benefits claim may be the basis of such a claim. Congress enacted the Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008), which created a new 38 U.S.C. § 5121A allowing substitution in the case of the death of a claimant but made these substitution provisions applicable only to cases involving deaths on or after October 10, 2008. As such, the Board finds that the appellant is not eligible for substitution as the claimant in the pending appeal at the time of her mother's death. M. E. LARKIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Komperda, 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.