Citation Nr: 21008608 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 18-01 785 DATE: February 17, 2021 ORDER Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. In August 2012, the Veteran filed a claim involving entitlement to service connection for bilateral hearing loss and tinnitus. Thereafter, in May 2013, he further claimed entitlement to service connection for throat cancer. 2. While his claims were pending, the Veteran died in April 2014. 3. In August 2015, the appellant, submitted an application for burial benefits and in January 2016, VA awarded $2,000.00 for funeral costs to the appellant. 4. In February 2016, the appellant (who is the Veteran’s living sister) submitted VA Form 21-0847, Request for Substitution of Claimant Upon Death of Claimant, and requested to be substituted as claimant in the Veteran’s pending claims. CONCLUSION OF LAW The criteria for entitlement to accrued benefits have not been met as a matter of law. 38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from March 1966 to October 1970. The appellant and her spouse, R.M., testified before the undersigned Veterans Law Judge (VLJ) at a January 2021 virtual hearing and a transcript of the hearing has been associated with the claims file. During the January 2021 hearing, the undersigned acknowledged that a prior June 2019 request from the appellant to have this matter advanced on the docket (AOD) due to her age was denied; however, since that time, the evidence of record documents that the appellant is now at least 75 years old, and as such, the AOD motion is granted. Entitlement to accrued benefits. The appellant seeks entitlement to accrued pension benefits based upon the Veteran’s previously submitted claims of entitlement to service connection for hearing loss, tinnitus, and throat cancer. Following a review of the record, and as discussed further below, the Board finds that the claim must be denied as a matter of law. The law provides for payment of certain accrued benefits upon death of a beneficiary. 38 U.S.C. § 5121. Periodic monetary benefits under laws administered by the Secretary to which a payee was entitled at his or her death under existing ratings or decisions or those based on evidence in the file at date of death and due and unpaid, will, upon the death of such person, be paid to the living person first listed below: (A) the veteran’s spouse; (B) the veteran’s children (in equal shares); (C) the veteran’s dependent parents (in equal shares). 38 U.S.C. § 5121(a), 5121(a)(2); 38 C.F.R. § 3.1000(a). In all other cases, only so much of the accrued benefits may be paid as may be necessary to reimburse the person who bore the expense of last sickness and burial. 38 U.S.C. § 5121(a)(6); 38 C.F.R. § 3.1000(a)(5). Among the requirements for a claimant to prevail on an accrued benefits claim is that the claim be filed within one year after the date of death of the individual with respect to whom such benefits are sought. 38 U.S.C. § 5121(c); 38 C.F.R. § 3.1000(c). A review of the record documents that prior to his death, the Veteran filed claims involving entitlement to service connection for bilateral hearing loss and tinnitus in August 2012, and entitlement to service connection for throat cancer in May 2013. While these claims were pending, the Veteran died in April 2014. Thereafter, in August 2015, the appellant (who is the Veteran’s sister) submitted an application for burial benefits. In January 2016, VA granted awarded $2,000.00 to the appellant for funeral costs. Subsequently, in February 2016, the appellant submitted VA Form 21-0847, Request for Substitution of Claimant Upon Death of Claimant, and requested to be substituted as claimant in the Veteran’s pending claims. In August 2016, VA notified the appellant that her claim for accrued benefits was denied because the claim was received by VA more than the one-year statutory time limit after the date of the Veteran’s death. Initially, the Board notes that the appellant, as the Veteran’s living sister, does not meet the statutory and regulatory definition as a person entitled to accrued benefits on behalf of the Veteran, except only that amount that may be paid as necessary to reimburse the person who bore the expense of last sickness and burial. In this case, the record reflects that VA has previously granted such benefits to the appellant in January 2016. Moreover, the record further documents that the appellant’s February 2016 claim to be substituted in the Veteran’s pending claims was received by VA more than one year after his April 2014 death. As such, the claim is not warranted as a matter of law. 38 U.S.C. § 5121(c); 38 C.F.R. § 3.1000(c). In summary, while the Board is sympathetic to the appellant’s situation given the support, including financial and otherwise, provided by the appellant and her spouse to the Veteran prior to his death, the Board is bound by the laws and regulations applicable to the benefit sought, rather than by considerations of equity. As the appellant is the living sibling of the Veteran who was previously reimbursed for payment of the Veteran’s expenses of last sickness or burial, and her claim for substitution was received more than one year following the Veteran’s death, entitlement to accrued benefits is not warranted as a matter of law. As the law is dispositive, the appellant’s claim must be denied because of the absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Chad Johnson, 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.