Citation Nr: 21013315 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 17-62 856 DATE: March 9, 2021 ORDER Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. At the time of the Veteran’s death, he was not entitled to any benefits which were due and unpaid. 2. The appellant is the Veteran’s adult step-daughter. CONCLUSION OF LAW The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1942 to November 1945. He was the recipient of the Purple Heart Medal, among other awards and decorations. The Veteran died in January 2014. The appellant is his adult step-daughter. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the appellant’s claim of entitlement to accrued benefits. The appellant filed a notice of disagreement (NOD) in December 2014 and a statement of the case (SOC) was issued in December 2017. She perfected a timely appeal in November 2017. In July 2020, the appellant presented sworn testimony during a virtual hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran’s VA claims file. 1. Entitlement to accrued benefits. Upon the death of an individual receiving VA benefit payments, certain persons shall be paid periodic monetary benefits to which the deceased beneficiary was entitled at the time of death under existing ratings or decisions, or those based on evidence in the file at date of death, and due and unpaid. See 38 U.S.C. § 5121; 38 C.F.R. § 3.1000(a). Accrued benefits to which a payee was entitled at his or her death under existing ratings or decisions, or those based on evidence in file at the date of death, will upon the death of such person, be paid as follows: (1) Upon the death of a veteran to the living person first listed as follows: (i) his or her spouse; (ii) his or her children (in equal shares); (iii) his or her dependent parents (in equal shares) or the surviving parent. See 38 C.F.R. § 3.1000(a). For purposes of determining eligibility for payment, a "child" of the veteran must be unmarried and must be either under the age of 18, have become permanently incapable of self-support before the age of 18, or be between the ages of 18 and 23 and pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101(4)(A)(ii); 38 C.F.R. §§ 3.57(a)(1), 3.1000(d)(2). Accrued VA benefits are only paid to certain recipients rather than to the payee's estate. In all other cases, only so much of the accrued benefit may be paid as necessary to reimburse the person who bore the expense of the last sickness and burial. See 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. The Board initially notes that the appellant filed a request for substitution in July 2014, which was interpreted as a claim for accrued benefits by the RO. With respect to the request for substitution itself, an eligible person may request to substitute as claimant for an appellant following his or her death for the purpose of processing any pending claims to completion. See 38 U.S.C. § 5121A. Substitution differs from a traditional “accrued benefits” claim in that additional evidence and argument may be added to the claims file following the death of the appellant. Cf. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. A request for substitution must be filed not later than one year after the date of an appellant’s death and, as provided for in this provision, a person eligible for substitution will include “a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title...” Id.; 38 U.S.C. § 5121A. Of specific note, the regulations provide that, in order for a substituted claimant to move forward, “a claim or appeal must be pending.” 38 C.F.R. § 3.1010(g)(1). A claim is considered to be pending “if the claimant had filed the claim with an agency of original jurisdiction but dies before the agency of original jurisdiction makes a decision on the claim,” or if at the time of the claimant’s death, “the agency of original jurisdiction has made a decision on the claim, but the claimant has not filed a notice of disagreement, and the period allowed by law for filing a notice of disagreement has not expired.” 38 C.F.R. § 3.1010 (g)(1)(i). Following a review of the record, the Board finds that there were no pending claims at the time of the Veteran's death in January 2014 or at the time of the death of his surviving spouse in May 2014. As such, a request for substitution may not be granted. With respect to the appellant’s claim of entitlement to accrued benefits, the Board notes that the appellant is the Veteran's adult step-daughter. See the Board hearing transcript dated July 2020. She is not shown to be a "child' of the Veteran within the meaning of 38 C.F.R. §§ 3.57. Thus, accrued benefits may only be paid as necessary to reimburse any expenses she paid for the Veteran's last sickness and burial. However, the Board notes that the appellant has not asserted that she incurred expenses for the Veteran’s last sickness and she already received compensation for the Veteran’s funeral and burial expenses, which was granted in an April 2014 decision. This decision is not presently on appeal. In this matter, the appellant asserts that she is entitled to benefits for the Veteran's month of death as an accrued benefit. See the Board hearing transcript dated July 2020. She argues that her mother, the Veteran’s surviving spouse, was entitled to the ‘month of death’ benefit prior to her death in May 2014. Id. Specifically, the Veteran died in January 2014. The appellant testified that the Veteran’s ‘month of death’ benefit was initially paid to her mother, but the payment was returned when VA received notice of the Veteran’s death. Id. The appellant’s mother died in May 2014. The appellant contends that she is entitled to receive the ‘month of death’ benefit, which was owed to her mother. Id. As indicated above, at the time of the Veteran's death, he was not entitled to any benefits which were due and unpaid. The record shows that the Veteran died in January 2014. VA compensation, payable to a veteran, ends on the "last day of the month before death." 38 U.S.C. § 5112(b)(1);38 C.F.R. § 3.500 g); see also Pelea v. Nicholson, 497 F.3d 1290, 1291 (Fed. Cir. 2007). Thus, benefits were terminated effective December 31, 2013, with his last payment being issued for the month of December. The Board notes that, under 38 U.S.C. § 5310, a surviving spouse of a veteran is entitled to a one-time benefit for the month of the veteran's death if at the time of the veteran's death, the veteran was receiving VA compensation, i.e. a ‘month of death’ check. 38 C.F.R. § 3.20(b). This benefit, however, is available only to a surviving spouse. Significantly, VA's General Counsel has held that, in circumstances where a Veteran's surviving spouse, entitled to receive section 5310(b)(1) month of the Veteran's death benefit, dies before receiving the benefit, VA is not required to pay to the deceased surviving spouse's estate the amount of the section 5310(b) benefit the surviving spouse would have received, but for his or her death. VAOPGCPREC 1-2009 (January 22, 2009). Under the law, this VA benefit terminates with the death of the surviving spouse. Specifically, the statutory terms chosen by Congress in enacting the regulatory provision read in the context of the statutory scheme for Veterans' benefits, clearly indicate that the benefit was intended solely for the surviving spouse of a Veteran. Cf. Pelea v. Nicholson, 497 F.3d 1290, 1292 (Fed. Cir. 2007) (providing similar analysis concerning dependency and indemnity compensation benefits upon the death of a surviving spouse). Under these circumstances, because the appellant is not the Veteran's surviving spouse, she is not entitled to the Veteran's surviving spouse's ‘month of death’ check. The Board has also carefully considered the argument as to entitlement to the month of death check as an accrued benefit owed to the surviving spouse. VA's General Counsel, however, has held that where a surviving spouse entitled to such benefit dies before receiving the benefit, the benefit is not subject to the accrued benefits provisions because the benefit is a one-time payment for the month of death and, therefore, cannot be considered "periodic monetary benefits." Id. While the Board is sympathetic to the appellant's arguments, it is bound by the applicable law and regulations, as well as the General Counsel's opinion. See 38 U.S.C. § 7104(c). The Board can only determine whether the appellant meets all of the requirements of the benefit being sought and, if she is not entitled to the benefit as specified by the statutes enacted by Congress and VA's implementing regulations, the benefit cannot be awarded regardless of the circumstances. See Sabonis v. Brown, 6 Vet. App. 426 (1994). In reaching this decision, the Board does not wish in any way to diminish the Veteran's heroic service. However, the Board has no option but to decide this claim in accordance with the applicable law. Under these circumstances, the Board must find that there is no legal basis for granting this appeal. As the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Sabonis, 6 Vet. App. at 430. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. K. Buckley, 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.