Citation Nr: 22017202 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 18-39 426 DATE: March 24, 2022 ORDER Basic entitlement to dependency and indemnity compensation (DIC) benefits is denied. Basic entitlement to survivor pension benefits is denied. Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. The appellant is the Veteran's sister; she is not a party legally eligible to claim DIC or survivor pension benefits. 2. The Veteran did not have any claims pending at the time of his death; no benefits were outstanding or owed to the Veteran at the time of his death. 3. The appellant's mother (also the Veteran's mother) did not have any claims pending at the time of her death; no benefits were outstanding or owed to the appellant's mother at the time of her death. CONCLUSIONS OF LAW 1. The criteria for status as a legal claimant for purposes of entitlement to DIC and survivor pension benefits have not been met. 38 U.S.C. §§ 101, 103, 1121, 1304, 1310, 1541,5107; 38 C.F.R. § 2.205, 3.1, 3.4, 3.5, 3.50, 3.54, 3.102. 2. The criteria for a grant of accrued benefits have not been met. 38 U.S.C. § 5107, 5121; 38 C.F.R. §§ 3.31, 3.102, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1972 to October 1975. The Veteran died in June 2011. The appellant is the Veteran's sister. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2012 and September 2017 decision letters issued by a Department of Veterans Affairs (VA) Regional Office (RO). It is noted that the appellant was initially denied entitlement to accrued benefits in September 2012. Although she did not file a formal notice of disagreement (NOD) with that decision, in October 2012, the appellant contacted VA to continue pursuit of an accrued benefits claim, which may be construed as an informal NOD with the denial of accrued benefits. As such, the Board is satisfied that the 2012 decision is part of this appeal. The September 2017 decision addressed entitlement to accrued benefits, in addition to entitlement to DIC and survivor pension benefits. In October 2021, the appellant testified before the undersigned Veterans Law Judge. A transcript of that hearing is of record. It is noted that the appellant's representative did not appear for her hearing. The undersigned explained the ramifications of proceeding without the aid of a representative, and the appellant stated that she understood and wished to proceed with the hearing. Survivor Benefits When a veteran dies, certain parties may be eligible to receive VA survivor benefits to include dependency and indemnity compensation (DIC) and survivor pension benefits. See 38 U.S.C. §§ 1121, 1310, 1541; 38 C.F.R. §§ 3.3(b), 3.5, 3.50. Generally speaking, to be entitled to DIC or survivor pension benefits, a claimant must be (1) the surviving spouse of the deceased veteran, or; (2) a dependent minor child of the deceased veteran, or; (3) an adult child of the deceased veteran who has been deemed permanently incapable of self-support. Additionally, a surviving parent of the deceased veteran may be eligible for DIC benefits, but not for survivor pension benefits. See 38 C.F.R. §§ 3.3(b), 3.5. Pursuant to 38 U.S.C. § 1310, DIC benefits are paid to qualifying survivor of a qualifying veteran who died from a service-connected disability. See 38 U.S.C. § 1310 (West 2014); Dement v. West, 13 Vet. App. 141 (1999), aff'd sub nom. Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). A veteran's death will be considered service connected where a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (a). The disability is the principal cause of death if it was "the immediate or underlying cause of death or was etiologically related thereto." 38 C.F.R. § 3.312 (b). It is a contributory cause if it "contributed substantially or materially" to the cause of death, "combined to cause death," or "aided or lent assistance to the production of death." 38 C.F.R. § 3.312 (c)(1). Basic entitlement to death pension benefits exists if (i) a veteran served for ninety days or more during a period or periods of war; or (ii) was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability based on wartime service; and (iii) the eligible survivor meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. §§ 3.23 and 3.24. See 38 U.S.C. §§ 101, 1521(j), 1541; 38 C.F.R. § 3.3. In addition to DIC and pension benefits, the law provides for payment of certain accrued benefits upon death of a beneficiary. 38 U.S.C. § 5121. Periodic monetary benefits under laws administered by the Secretary to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death and due and unpaid, shall, upon the death of a beneficiary, be paid to the living person first listed below: (A) the beneficiary's spouse; (B) the beneficiary's children (in equal shares); (C) the beneficiary's dependent parents (in equal shares). 38 U.S.C. § 5121 (a), 5121(a)(2); 38 C.F.R. § 3.1000 (a). In all other cases, 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)(6). Benefits become accrued if they are owed to a recipient, but unpaid at the time of the recipient's death, or if the recipient had a claim pending at the time of their death which was later granted. For example, if the Veteran had filed a claim which had not yet been granted at the time of his death, or if a claim had been granted but funds were not disbursed prior to his death, those funds would become accrued. Accrued benefits are only payable up to the amount owed to the beneficiary at the time of his or her death. 1. Basic entitlement to dependency and indemnity compensation (DIC) benefits 2. Basic entitlement to survivor pension benefits The appellant contends that the Veteran's death was the result of exposure to herbicides during active service, and seeks to be found an eligible party to pursue claims of DIC and survivor pension benefits. The Board finds she is not an eligible party and the claims must be denied. In this matter, the appellant is the Veteran's sister, and therefore, she is not a "surviving spouse," "child," or "parent" of the Veteran. In short, she does not meet the statutory criteria of an eligible party to claim DIC or survivor pension benefits. As the appellant is not an eligible party to claim either DIC or survivor pension benefits in her own right and her claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 3. Entitlement to accrued benefits The appellant seeks accrued benefits owed either to the Veteran at the time of his death, or in the alternative, owed to her mother as a survivor of the Veteran. The Board finds that the claim must be denied. As an initial matter, as noted above, eligible claimants for accrued benefits may include parties beyond those entitled to DIC or survivor pension benefits, to include any party who bore the cost of the deceased veteran's final illness and burial. Such a party is able to claim accrued benefits as reimbursements for those costs, but no more. In this matter, the evidence demonstrates that the appellant paid the full cost of the Veteran's funeral. As such, she would be an eligible claimant for any accrued benefits owed to the Veteran at the time of his death. However, upon review of the claims file, the Veteran was not owed any outstanding benefits at the time of his death. Further, he did not have any claims pending at the time of his death. Therefore, to the extent that the appellant could claim accrued benefits owed to the Veteran, as no such benefits existed, there is nothing to claim. The appellant also claims accrued benefits owed to her and the Veteran's mother at the time of her death as part of a survivor benefits claim initially filed by her mother following the Veteran's death. Specifically, she asserts that her mother filed a claim in 2012, but that her mother died in May 2016, and therefore she seeks to continue her mother's DIC and survivor pension claim. However, upon review, the Board does not find that such a claim was ever filed by her mother. As a matter of law, claims do not survive a claimant's death. Therefore, any claim hypothetically filed by the appellant's mother prior to her death would be dismissed for lack of jurisdiction. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. While there are provisions in place to allow for an eligible person to take a claimant's place in his or her appeal in order to get a final decision for purposes of accrued benefits, a process called substitution, this would require that the appellant's mother had filed a claim prior to her death, which the Board finds she did not do. The Veteran died in June 2011. On August 4, 2011, the appellant filed two separate claims for accrued benefits and burial benefits. On both applications she identified herself as the Veteran's sister and as the claimant. Additionally, when questioned on the claim form for accrued benefits about the Veteran's surviving relatives, she denied any spouse, children, or parents and checked "none." It is notable that the appellant's mother would take precedence over the appellant on a claim for accrued benefits owed the Veteran at the time of his death; thus, by checking "none" it can be implied that the appellant sought to ensure any benefits were paid directly to her. In May 2012, the Veterans of Foreign Wars, who since 2017 has represented the appellant, submitted a VA Form 21-0845 (Authorization to Disclose Personal Information to a Third Party) on behalf of the appellant, and signed by the appellant's mother authorizing VA to disclose information to the appellant. The representative submitted this form with a note indicating it did not have a power of attorney relationship with either party, but was submitting it as a courtesy to the appellant. No actual claim on behalf of the mother was submitted with that correspondence. On August 1, 2012, burial benefits were granted, but were sent in error to a son with the same name as the Veteran (it is noted that the record does not support the Veteran ever having a son or that a party claiming they were the Veteran's son claimed burial benefits). The appellant contacted VA and explained the mistake, returned the incorrect check, and the granted burial benefits were then issued by VA directly to her. In September 2012, the RO issued a decision letter denying accrued benefits to the appellant. As noted above, there is a correspondence submitted in October 2012 from the appellant which may be construed as a NOD with the denial of accrued benefits, dating this appeal back to the September 2012 decision letter. After a careful review of the claims file, the Board finds that appellant's mother did not file any actual claim for survivor benefits prior to her death in May 2016. The only claims filed by any survivor prior to the mother's death were the August 2011 burial benefits and accrued benefits claims, filed by the appellant, and which listed the appellant as the sole claimant on those claims. In fact, the only claims for DIC or pension benefits were filed in September 2017, 16 months after the appellant's mother passed away, and listing the appellant herself as the claimant. In short, the appellant cannot pursue a claim initiated by her deceased mother for purposes of entitlement to accrued benefits, as no evidence of such a claim exists in the claims file. In sum, neither the Veteran nor his mother were owed benefits by VA or had pending claims at the time of their deaths. As such, no benefits have accrued and the appellant's claim for accrued benefits must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. In reaching the conclusions in this decision, the Board is certainly not unsympathetic to the appellant's assertions that her brother's death was caused by his active service. The Board acknowledges that the Veteran served his country honorably from August 1972 to October 1975. However, survivor benefits are statutorily limited to specific parties who may pursue an appeal pertaining to the Veterans' cause of death. In this case, the appellant is not herself eligible to file such a claim, and no claim was filed by either the Veteran or the Veteran's mother pertaining to the Veteran's cause of death prior to their own deaths in 2011 and 2016 respectively. As such, the Board cannot adjudicate the question of the cause of the Veteran's death, as the appellant does not have standing to pursue that claim at this time. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Pryce, Counsel