Citation Nr: 21009152 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 17-12 529 DATE: February 19, 2021 ORDER The claim seeking accrued benefits was timely filed; in that respect, the appeal is granted. FINDINGS OF FACT 1. The Veteran died in November 2011. 2. On January 18, 2012, the Agency of Original Jurisdiction (AOJ) received the appellant’s claim of entitlement to accrued benefits. 3. On January 23, 2014, the AOJ notified the appellant that his claim of entitlement to accrued benefits was denied because the evidence did not show unreimbursed expenses paid by the appellant. 4. On October 31, 2014, within one year of notice of the deficiency in his claim, the AOJ received the appellant’s statement of account. 5. In November 2015, the AOJ received additional evidence submitted by the appellant. 6. In August 2016, the AOJ received a supplemental application for accrued benefits, which was denied in December 2016 as untimely; this appeal followed. CONCLUSION OF LAW The criteria for filing a timely claim for accrued benefits are met. 38 U.S.C. §§ 5107, 5121; 38 C.F.R. §§ 3.156(b), 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from October 1942 to January 1977 and was awarded the Silver Star Medal, Bronze Star Medal with 1 Oak Leaf Cluster, and Purple Heart with 1 Oak Leaf Cluster. He died in November 2011. The appellant, the Veteran’s adult son, is claiming entitlement to accrued benefits based on unreimbursed expenses. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2016 decision of an AOJ of the Department of Veterans Affairs (VA) regarding the appellant’s entitlement to accrued benefits. In January 2021, the appellant testified at a videoconference hearing before the undersigned. The appellant’s representative was unable to attend the Board hearing. However, the appellant waived any due process issue and requested that the hearing proceed without his representative present. See Hearing Transcript at 2. An application for accrued benefits must be filed within one year of the death of a veteran. A claim for death pension, compensation, or dependency and indemnity compensation, by a surviving spouse is deemed to include claim for any accrued benefits. If an application for accrued benefits is incomplete because the claimant has not furnished information necessary to establish that he or she is within the persons eligible to receive accrued benefits, VA shall notify the claimant that if VA does not receive the required information within one year of the date of the original VA notification of information required, no benefits will be awarded on the basis of that application. 38 C.F.R. § 3.1000(c). The appellant initially filed a claim for accrued benefits in January 2012, within one year of the Veteran’s death. See January 2014 Award Print (January 2012 VA Form 21-601). In January 2014, the AOJ denied the claim for accrued benefits because the claim did not include any reimbursed expenses paid by the appellant. See January 2014 Notification Letter. Thus, the key issue as to timeliness is whether the appellant submitted the missing information, i.e. evidence showing unreimbursed expenses, within one year of the January 2014 notification that his claim was denied. 38 C.F.R. § 3.1000(c). The appellant testified that in October 2014 he submitted evidence of expenses that he paid. See Hearing Transcript at 3-4. Moreover, the record shows a statement of account submitted by the appellant bearing date stamps of October 30, 2014 and November 17, 2014 by the Virginia Department of Veterans Service, as well as an October 31, 2014 date stamp by the VA. See January 2021 Hearing Related. It appears that the AOJ was unaware of this evidence submitted by the Veteran, as it is not referenced in the AOJ decisions of record. The appellant subsequently submitted additional evidence in November 2015. See November 2015 Fax Cover Sheet. The AOJ requested that the appellant submit a claim on VA’s prescribed form, see July 2016 Notification Letter. The appellant complied, see August 2016 Fax Cover Sheet, and in December 2016 the AOJ denied the appellant’s August 2016 claim as untimely, as it was not received within one year of the January 2014 denial. The appellant perfected a timely appeal of this decision as to the issue of the timeliness of a claim for appealed benefits. While the October 2014 evidence was not in the claims file prior to submission by the appellant, there is no reason to doubt the validity of the evidence submitted by the appellant. Moreover, the rules governing payment of accrued benefits explicitly state that where a timely claim is denied due to an incomplete application, an appellant may submit the evidence within one year of the notification that the claim was incomplete. See 38 C.F.R. § 3.1000(c) (Emphasis added). Thus, as the October 2014 evidence was submitted within the one-year time frame, it is considered to have been received as part of the timely January 2012 claim. Thus, the claim of entitlement to accrued benefits is timely. The Board acknowledges that the evidence submitted by the appellant in January 2021 includes evidence dated as of 2015, as well as the evidence bearing the October 2014 date stamp. However, the appellant testified before the Board that the 2015 submission was a duplicate of the October 2014 submission, and that he submitted the 2015 evidence after inquiring as to the status of his claim, resulting in his being informed by a VA representative to re-submit the evidence package. See Hearing Transcript at 7. This reasonable explanation accounts for the discrepancy, and the Board observes that the 2015 evidence was duplicative. See January 2021 Hearing Related Evidence. Accordingly, as the record shows that the appellant submitted outstanding necessary evidence as to unreimbursed expenses within one year of the January 2014 denial, the criteria for submitting a timely claim for accrued benefits are met. If the AOJ continues to deny the appellant’s claim on the merits, he may seek review of that decision by filing the appropriate VA-promulgated form. However, the present appeal is limited to the issue of the timeliness of a claim for accrued benefits, and this appeal is granted in full and the claim is accepted as timely. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.M. Badaczewski, Associate 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.