Citation Nr: A21019377 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 200305-73385 DATE: December 6, 2021 ORDER Entitlement to dependency and indemnity compensation (DIC) based on service connection for the Veteran's cause of death is moot and is dismissed. Entitlement to survivor's pension benefits is moot and is dismissed. Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. Prior to the promulgation of a decision in the appeal, an additional decision was finalized in October 2020 granting service connection for the Veteran's cause of death. 2. The award of service connection for the Veteran's cause of death in the October 2020 decision renders the Appellant's appeal for survivor's pension benefits moot. 3. The Veteran did not have any pending claims at the time of his death in November 2018. CONCLUSIONS OF LAW 1. There being no justiciable case or controversy, the issue regarding entitlement to DIC based on service connection for the Veteran's cause of death is dismissed. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.104. 2. The claim for entitlement to survivor's pension benefits is dismissed. 38 U.S.C. §§ 1541, 7104, 7105; 38 C.F.R. §§ 20.104. 3. The criteria for accrued benefits have not been met. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1948 to March 1950, November 1951 to November 1955, and November 1955 to February 1972. He died in November 2018. The Appellant is his surviving spouse. The decision on appeal was issued in September 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the March 2020 VA Form 10182, Decision Review Request: Board Appeal, the Appellant elected the Hearing docket. In June 2021, the Appellant withdrew her hearing request. Therefore, the Board may only consider the evidence of record at the time of the September 2019 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Appellant within 90 days following receipt of the withdrawal. 38 C.F.R. § 20.302(b). 1. Entitlement to dependency and indemnity compensation (DIC) based on service connection for the Veteran's cause of death. In a September 2019 decision, the AOJ denied DIC benefits based on service connection for the Veteran's cause of death. The Appellant filed a March 2020 notice of disagreement and appeal to the Board. However, in a subsequent October 2020 decision, the AOJ granted service connection for the Veteran's cause of death. In light of the October 2020 decision, the Appellant's appeal to the Board is rendered moot. Thus, there being no justiciable case or controversy, the appeal must be dismissed. 38 U.S.C. § 7104. 2. Entitlement to survivor's pension benefits. In a September 2019 decision, the AOJ declined to adjudicate entitlement to survivor's pension benefits on the basis that the Appellant did not submit a complete application for survivor's pension benefits. The Appellant filed a March 2020 notice of disagreement and appeal to the Board. In a subsequent October 2020 decision, the AOJ granted service connection for the Veteran's cause of death. Death pension is available to the surviving spouse of a veteran because of the veteran's nonservice-connected death, as long as the veteran served for the required period of time during wartime, subject to certain income limitations. 38 U.S.C. §§ 101, 1521(j), 1541; 38 C.F.R. §§ 3.3(b)(4), 3.23(a)(5), (d)(5). In the present case, service connection for the Veteran's cause of death was granted in an October 2020 decision under the provisions of 38 C.F.R. § 1318. The grant of service connection for the Veteran's cause of death provides the greater award. 38 U.S.C. §§ 1311, 1541. In light of the grant service connection for the Veteran's cause of death, the appeal of entitlement to nonservice-connected survivor's pension benefits under 38 U.S.C. § 1541 is moot, and the appeal is dismissed. 3. Entitlement to accrued benefits. The Appellant contends that she is entitled to accrued benefits following the Veteran's death. Accrued benefits are those monetary benefits, other than insurance or indemnity payments, to which an individual was entitled to at the time of his or her death under existing ratings or decisions or based on evidence in the file at the date of death. 38 U.S.C. § 5121. Entitlement to accrued benefits may be established only if the Veteran had a claim for benefits pending at the time of his or her death or was entitled to benefits under a current rating decision. Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998). The Veteran had not filed any claims for benefits which were pending with VA at the time of his death. Furthermore, the record shows that the Appellant was issued payment in the amount of $417.15 for the month in which the Veteran died. See July 2019 notification letter. In the absence of any open and pending claims at the time of the Veteran's death, and in the absence of any entitlement to benefits at the time of death, there is no possibility of entitlement to accrued benefits. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. Accordingly, the claim is denied. 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.