Citation Nr: A21014318 Decision Date: 08/26/21 Archive Date: 08/26/21 DOCKET NO. 210709-174858 DATE: August 26, 2021 ORDER Entitlement to accrued benefits and Parents' Dependency and Indemnity Compensation (DIC) benefits is denied. FINDINGS OF FACT 1. The appellant has not produced sufficient evidence to show that she has proper status as a claimant with respect to a claim for Parents' DIC benefits or for accrued benefits purposes. 2. At the time of the Veteran's death, he did not have any pending claims. CONCLUSIONS OF LAW 1. The criteria for entitlement to parents' DIC benefits have not been satisfied. 38 U.S.C. §§ 1315, 5312; 38 C.F.R. §§ 3.25, 3.251, 3.260, 3.262. 2. The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. §§ 5103, 5103A, 5121, 5121A; 38 C.F.R. § 3.1000, 3.1010. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1975 to January 1977. The Veteran passed away in May 2019. The appellant is the Veteran's mother. The Department of Veterans Affairs (VA) Regional Office (RO) denied the appellant's claims in July 2020 rating decision. The rating decision constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the July 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. 1. Entitlement to accrued benefits and Parents' DIC benefits The appellant generally contends that she has the status to pursue a claim for DIC benefits and accrued benefits, inclusive of a claim for entitlement to service connection for the cause of the Veteran's death. Specific argument in support of this appeal has not been submitted. In a June 2020 VA Form 20-0996, the appellant only made a general assertion that she has submitted all of the paperwork requested by the RO. Notably, in the November 2019 submission of VA 21-534EZ form, the appellant submitted all pages including page 8, although it is incomplete; the VA could not verify the relationship between the Veteran and the appellant based on the lack of information provided. DIC benefits may be awarded to a surviving spouse, child, or parent of a veteran who dies from a service-connected or compensable disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5(a). DIC is available to a surviving parent, subject to income limitations detailed in 38 U.S.C. § 1315, if the Veteran's death is service connected. See 38 U.S.C. § 1310. Accrued benefits are those benefits to which an individual was entitled at the time of death under an existing rating or based on evidence in the file at the date of death. See 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a). Upon the death of an individual, any accrued benefits are payable to the first living person in a list as follows: the Veteran's spouse, the Veteran's children (in equal shares), or the Veteran's dependent parents (in equal shares) or surviving parent. 38 U.S.C. § 5121(a)(2); 38 C.F.R. § 3.1000(a)(1). In all other cases, accrued benefits may be paid only as 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). Under 38 U.S.C. § 5121(c), a claim for accrued benefits requires that the application be filed within one year after the date of death. Similarly, if a claimant dies while a claim for benefits or appeal is pending, a living person who would be eligible to receive accrued benefits may file a request to be substituted as the claimant for the purposes of processing the claim to completion provided the request is submitted within one year of the date of the death of the claimant. 38 U.S.C. § 5121A. With respect to substitution, a largely identical set of criteria apply with respect to individuals eligible to be considered a substitute party. Only those eligible for accrued benefits can be substituted in the case of a death of a claimant. 38 U.S.C. § 5121A(a)(1); 38 C.F.R. § 3.1010(a). Of crucial importance, regardless of whether the benefit being sought is on an accrued basis or as a substitute party, the existence of a party with a higher priority precludes as a matter of law a subordinate party from becoming eligible for benefits. See 38 C.F.R. § 3.1000(c)(2) ("Failure to file timely claim, or a waiver of rights, by a preferred dependent will not serve to vest title in a person in a lower class or a claimant for reimbursement"); 38 C.F.R. § 3.1010(g)(4) ("Failure to timely file a request to substitute, or a waiver of the right to request substitution, by a person of a preferred category of eligible person will not serve to vest the right to request substitution in a person in a lower category"). Here, the appellant seeks death benefits as the Veteran's surviving parent. However, the regulations regarding both accrued benefits and substitution identify a spouse as being in higher priority than a parent. 38 C.F.R. § 3.1000(a)(1). As such, if the Veteran were married at the time of his death and that spouse qualified as a surviving spouse eligible for benefits, the appellant's eligibility is barred as a matter of law. Except in the circumstance of a marriage deemed valid as described in 38 C.F.R. § 3.52, a surviving spouse is defined as a person: whose marriage to the veteran meets the requirements of 38 C.F.R. § 3.1(j); who was married to the veteran at the time of the veteran's death; who lived with the veteran continuously from the date of marriage to the date of the death, and, in most circumstances; and who has not remarried since the death of the Veteran. As a preliminary matter, the Board finds that prior to the Veteran's death, in a January 2019 administrative decision, the appellant was found not to be a factual dependent parent of the Veteran for VA purposes. The decision explained that VA was unable to verify the appellant's Social Security income as her Social Security number and birth date as provided by the Veteran was unverified and did not match Social Security Administration records. Here, the Board notes that the Veteran submitted a marriage certificate in December 1984, and no divorce decree is associated with the claims file; there is no indication that the Veteran and his spouse was divorced or separated. Moreover, the Veteran's death certificate lists his marital relationship as "married." The record reflects that although the appellant submitted claims for death benefits within a year of the Veteran's death, the Veteran's spouse did not. The record shows that the Veteran's surviving spouse claimed a month of death benefit in November 2019. In March 2020, the spouse was deemed as surviving spouse and was granted the entitlement to receive the Veteran's benefit for the month he died. The Veteran's surviving spouse did not appeal this decision. In light of these findings, the Board finds that the Veteran had a surviving spouse at the time of his death. A spouse is a person of higher priority than the parent under VA's regulations governing accrued benefits and substitution. As such, the appellant is ineligible as a matter of law from receiving accrued benefits or receiving death benefits as a substitute party to finish the prosecution of a claim or appeal pending at the time of a veteran's death. See 38 C.F.R. §§ 3.1000(c)(2), 3.1010(g)(4). Regarding the substantive aspect, the Veteran died in May 2019. At the time of his death, he was service connected for bilateral hearing loss and tinnitus; there were no pending claims of entitlement to service connection for any other disability and no party asserts otherwise. Prior to that time, the last communication between the RO and the Veteran was in April 2019, when the Veteran was in the process of being scheduled for a VA examination to determine the severity of the Veteran's service-connected bilateral hearing loss. There were no pending claims at the time. The February 2020 Death Certificate identifies that the Veteran died in May 2019 complications of hypoglycemia, probable exogenous insulin administration, and type 2 diabetes mellitus. At the time of his death, the Veteran was in receipt of VA disability compensation benefits for service-connected bilateral hearing loss at 40 percent and tinnitus at 10 percent disabling. The appellant does not assert, not does any evidence suggest, that the Veteran died of a service-connected disability. The Board recognizes that the appellant has not been asked whether they wished to proceed in their claims as a substitute party or on an accrued basis. However, as explained above, there are no facts to resolve in this case, and the requested action has no bearing on those facts (i.e. the existence of the Veteran's surviving spouse). There remains no potential benefit in remanding this matter for corrective action. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). The appeal is denied as a matter of law. In sum, the Veteran did not die from a service-connected disability or compensable disability. Furthermore, the appellant is not a dependent surviving parent. Accordingly, the Board concludes that entitlement to accrued benefits or DIC is not warranted as a matter of law. 38 U.S.C. §§ 1310, 1315; 38 C.F.R. § 3.5. See Sabonis v. Brown, supra. In so concluding, the Board in no way intends to minimize the Veteran's honorable service, or the appellant's sincerity in pursuing her claim. However, the Board is obligated to decide cases based on the evidence before it and the applicable law and is without authority to grant benefits on an equitable basis. See Harvey v. Brown, 6 Vet. App. 416, 425 (1994). KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.J. Kim, 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.