Citation Nr: 22019959 Decision Date: 04/03/22 Archive Date: 04/03/22 DOCKET NO. 15-13 893 DATE: April 3, 2022 ORDER Entitlement to accrued benefits is denied. FINDING OF FACT At the time of the Veteran's death, he was not entitled to any benefits which were due and unpaid. 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 FINDING AND CONCLUSION The Veteran died in December 2013. The Appellant is his daughter. She has appealed a June 2014 decision which denied entitlement to accrued benefits. In a November 2015 statement, the Appellant requested a Board hearing, but she did not request a hearing in her substantive appeal. In a February 2022 letter, the Board requested clarification as to whether the Appellant still wanted a Board hearing. The letter informed the Appellant of her hearing options, and informed her that if she did not respond within 30 days from the date of the letter, the Board would assume that she did not wish to have a hearing. The Appellant did not respond to the February 2022 letter. Therefore, her hearing request has been withdrawn. 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 record indicates that the Appellant is the adult daughter of the Veteran. A review of the record shows that there were no claims pending at the time of the Veteran's death, and he was not entitled to any benefits which were due and unpaid. The Veteran was in receipt of monthly pension benefits prior to his death. The Appellant contends in her July 2014 notice of disagreement and April 2015 substantive appeal that she is entitled to 19 days of benefits for the month of December 2013, the month of the Veteran's death. She contends that she is the executor of the Veteran's estate and that the month of death check should be awarded to the Veteran's estate. The Board finds that the Veteran's was not entitled to any benefits which were due and unpaid at the time of his death. The Veteran died on December [REDACTED], 2013. The law provides that VA compensation or pension, payable to a veteran, ends on the "last day of the month before such death occurs." 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, his entitlement to payment of pension benefits ended on November 30, 2013 and benefits were not due to him for the month of his death, or for any part of the month of his death. An exception is available under 38 U.S.C. § 5310 provides that 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 or pension, i.e. a "month of death" payment. 38 C.F.R. § 3.20 (b). The "month of death" payment is available only to the surviving spouse of a veteran. The Appellant is the Veteran's adult daughter. A certificate of death of record shows that the Veteran's spouse died in April 2004. As the spouse's death preceded the Veteran's death, a month of death check is not available. In summary, due to the Veteran's death in December 2013, his entitlement to pension ended on November 30, 2013. Thus, the Board finds that there were no benefits which remained due and were unpaid. While the Board understands the Appellant's argument that the Veteran's death occurred in December 2013 and that she believes that a partial payment should be awarded for that month, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994) Accordingly, the appeal for accrued benefits is denied. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christine C. Kung 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.