Citation Nr: 21009673 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 18-19 652 DATE: February 23, 2021 ORDER Entitlement to accrued benefits is denied. FINDING OF FACT The appellant is not a proper claimant for the payment of accrued benefits. CONCLUSION OF LAW The criteria for entitlement to accrued benefits have not been met. U.S.C. § 5121; 38 C.F.R. § 3.1000.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the U.S. Army from June 1944 until May 1946. For his service, the Veteran was awarded the American Theater Ribbon, the European-African-Middle-Eastern Theater Ribbon with 1 Bronze Battle Star, 2 overseas service bars, and a Victory Medal. The Veteran passed away in October 2016 and the appellant is his son. The appellant testified at a Board hearing before the undersigned Veterans Law Judge in August 2020 and a transcript of the proceeding is of record. The Board finds that all requirements for hearings have been met. 38 C.F.R. § 3.103 (c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Veteran’s claim of entitlement to special monthly compensation based on a need for aid and attendance was granted in an October 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) shortly after the Veteran’s death and prior to the payment of any benefits. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2017 VA decision denying the appellant’s claim of entitlement to accrued benefits. In September 2017, the appellant requested to be substituted as the claimant. In an October 2017 notice of disagreement and correspondence, the appellant wrote that he sought an earlier effective date for the grant of special monthly compensation benefits and for payment of accrued benefits to the Veteran’s estate. The March 2018 statement of the case addressed the effective date and substitution claims, explaining in the body of the document why both were denied. The appellant limited the appeal to the payment of accrued benefits, which is the remaining issue before the Board. See April 2018 Form 9. 1. Entitlement to accrued benefits is denied. Periodic monetary benefits to which a VA payee was entitled at his or her death, either by reason of existing VA ratings or decisions or those based on evidence in the file at date of death, and due and unpaid, are known as "accrued benefits." 38 U.S.C. § 5121; 38 C.F.R. § 3.1000; see also Zevalkink v. Brown, 102 F.3d 1236 (Fed Cir. 1996). For a claimant to prevail on an accrued benefits claim, the record must show that: (i) the individual has standing to file a claim for accrued benefits, (ii) the VA payee had a claim pending at the time of death, (iii) the VA payee would have prevailed on the claim if he or she had not died; and (iv) the claim for accrued benefits was filed within one year of the VA payee's death. 38 U.S.C. §§ 5121, 5101(a); 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). If a VA payee dies on or after October 10, 2008, a person eligible for accrued benefits under § 3.1000(a) may also request to substitute for the deceased claimant in a claim for periodic monetary benefits that was pending when the claimant died. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(a). Upon the death of a surviving spouse, accrued benefits are payable only to the veteran's children. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000(a)(3). For accrued purposes, “child” includes an unmarried child who became permanently incapable of self-support prior to attaining 18 years of age as well as an unmarried child over the age of 18 but not over 23 years of age, who was pursuing a course of instruction within the meaning of §3.57 at the time of the payee’s death. In all other cases, only so much of the accrued benefit may be paid as may be necessary to reimburse the person who bore the expense of last sickness or burial. 38 U.S.C. § 5121(a)(6); 38 C.F.R. § 3.1000(a)(5). Here, the appellant does not allege, and the evidence does not show, that he meets the statutory requirements to be considered a child or that he bore the expense of the Veteran’s care or burial. See October 2017 notice of disagreement; see August 2020 hearing testimony. The appellant has expressed a desire for equitable relief for similarly situated veterans who die prior to payment of VA benefits. See March 2018 correspondence. In the April 2018 substantive appeal, the appellant requested that the Board draft language to Congress to advocate for changing the regulations regarding the payment of accrued benefits. The Board is sympathetic to the appellant’s arguments but is limited by the current legal framework, and there is currently no regulatory basis to award accrued benefits to the estate of the Veteran or the appellant. No equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress. Regretfully, the claim of entitlement to accrued benefits is denied. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Smith, 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.