Citation Nr: 21040917 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-59 137 DATE: July 7, 2021 ORDER Entitlement to accrued benefits is denied. FINDING OF FACT The appellant is the adult child of the Veteran over the age of 23 who has not been deemed permanently incapable of self-support. CONCLUSION OF LAW The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. § 5121; 38 C.F.R. § 3.57, § 3.1000. REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters The Veteran had honorable active duty service with the United States Air Force from January 1961 to January 1969. The Veteran passed away in January 2015. The appellant is the Veteran's daughter. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2016 notice of decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in her November 2016 substantive appeal, the appellant requested a hearing before the Board. Accordingly, the appellant was scheduled for a Board hearing in February 2020, for which she did not appear. Another hearing was scheduled in March 2021, which was postponed. The appellant was then scheduled for a hearing in June 2021, for which she did not appear. To date, the appellant has not requested that her hearing be rescheduled or provided good cause for her failure to show. Therefore, the Board finds the appellant's request for a hearing to be withdrawn, and the Board will proceed with its review on the present record. ACCRUED BENEFITS Accrued benefits are those monetary benefits, other than insurance or indemnity payments, to which an individual was entitled to at the time of his death under existing ratings or decisions, or based on evidence in the file at the date of death. 38 U.S.C. § 5121. Under 38 C.F.R. § 3.1000(1), certain eligible individuals may be paid periodic monetary benefits authorized by VA law to which a payee was entitled - and which are due and unpaid - at the time of his or her death under existing ratings or based on evidence in the file or constructively of record at the time of his or her death, payable upon the death of a veteran to a living person in the following order: (i) the Veteran's spouse, (ii) the Veteran's children (in equal shares), (iii) the Veteran's dependent parents (in equal shares) or the surviving parent. Although the appellant's claim for accrued benefits is separate from the claims that the Veteran filed prior to his death, the accrued benefits claim is "derivative of" the Veteran's claims and the appellant takes the Veteran's claims as they stood on the date of his death. Zevalkink v. Brown,102 F.3d 1236(Fed. Cir. 1996). Entitlement to accrued benefits may be established only if the Veteran had a claim for benefits pending at the time of his death or was entitled to benefits under a current rating decision. Jones v. West,136 F.3d 1296 (Fed. Cir. 1998). Entitlement to accrued benefits is denied. In this case, the appellant reported on her July 2015 application for accrued benefits that she was born in September 1970. Indeed, the Veteran's birth certificate, which was associated with the Veteran's claims file in April 1975 shows that she was born in September 1970. Moreover, the appellant has not asserted nor is there evidence that she is permanently incapable of self-support. Accordingly, she does not qualify as a member of one of the statutorily enumerated categories of recipients listed above. In cases where a claimant does not qualify as a member of one of the statutorily enumerated categories of recipients listed above, "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)(5). See Burris v. Principi, 15 Vet. App. 348, 352-53 (2001) (denying accrued benefits in excess of the amount paid for the burial because the deceased claimant's son, who was 70 years old, did not meet the statutory and regulatory definition of "child"). The appellant was paid burial benefits of $1,009.99 following the Veteran's death. See August 2015 notice to appellant. Accordingly, the Board concludes that there is no legal basis for the appellant to be paid accrued benefits in excess of the amount she incurred ($1,009.99) as last-sickness-and-burial expenses for the Veteran. In her July 2015 application for accrued benefits, the appellant contends entitlement to compensation for benefits awarded but not received from May 1, 2008, to December 1, 2014. However, the law does not provide a basis in which to pay the appellant the retroactive compensation benefits that she seeks. In Richardson v. Nicholson, 476 F.3d 883 (2007), the Veteran died without retroactive benefits having been paid to the fiduciary. The fiduciary sought a writ of mandamus with the United States Court of Appeals for Veterans Claims (Court), which had dismissed the petition as moot. In affirming the dismissal, the Federal Circuit reiterated that only those eligible to receive accrued benefits, including the veteran's children (as defined by statute), may seek benefits that are due and unpaid. The Federal Circuit found immaterial that the entitlement to benefits had been conceded or determined prior to the veteran's death. Thus, as the appellant is not a "child" of the Veteran as defined by statute, her status does not confer on her the ability to claim benefits due and unpaid to the Veteran at the time of his death other than last-sickness-and-burial expenses. Her failure to satisfy this definition of a "child" also prevents her from being eligible to be considered a substitute party. See Sucic v. Wilkie, 921 F.3d 1095, 1101 (Fed. Cir. 2019). 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. Sabonis v. Brown, 6 Vet. App. 426 (1994). B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.