Citation Nr: 22045014 Decision Date: 08/09/22 Archive Date: 08/09/22 DOCKET NO. 19-00 003A DATE: August 9, 2022 ORDER Entitlement to additional accrued benefits is denied. FINDINGS OF FACT 1. An October 2017 Rating Decision granted service connection for the cause of death and established the Appellant's eligibility to Dependents' Educational Assistance; burial benefits were also awarded in an October 2017 decision. 2. Appellant's daughter was added to the Dependency and Indemnity Compensation (DIC) award as a dependent effective August 1, 2017, payable September 1, 2017. CONCLUSION OF LAW The criteria for additional accrued benefits are not met. 38 U.S.C. §§ 101, 5304, 5107, 5121, 5121A; 38 C.F.R. §§ 3.57, 3.102, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from July 1987 to April 1998. He died in August 2017. The Appellant is his surviving spouse. 1. Entitlement to additional accrued benefits. A claim for DIC includes a claim for service connection for cause of death under 38 U.S.C. § 1310, and benefits for survivors of certain veterans rated totally disabled at the time of death under 38 U.S.C. § 1318. Benefits under 38 U.S.C. § 1310 for service connection for the cause of a veteran's death are considered the greater benefit, and thus a grant of benefits under this statute moots any claim for benefits under 38 U.S.C. § 1318. Concurrent receipt of benefits under both statutes is prohibited. The effective date of an award of death compensation, DIC, or death pension, for which application is received within one year from the date of a veteran's death, shall be the first day of the month in which a veteran's death occurred. 38 U.S.C. § 5110(d); 38 C.F.R. § 3.400(c). Accrued benefits are defined as periodic monetary benefits authorized under law administered by VA, to which a payee was entitled at his death under existing ratings or decisions or those based on evidence in the file at the date of death, and due and unpaid. 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a); Ralston v. West, 13 Vet. App. 108, 113 (1999). Upon the death of a veteran, accrued benefits are paid to the first living person in a list as follows: a veteran's spouse, a veteran's children (in equal shares), or a 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). For purposes of establishing entitlement to certain VA benefits, an individual may be recognized as a "child" of a veteran. The term "child" is defined, for purposes of VA benefits, as an unmarried person who is a legitimate child, a child legally adopted before the age of 18 years, a stepchild who acquired that status before the age of 18 years and who is a member of the veteran's household or was a member of the veteran's household at the time of the veteran's death, or an illegitimate child; and who is (i) under the age of 18 years; (ii) before the age of 18 years became permanently incapable of self-support; or (iii) after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.57. The appropriate date on which to assess whether a person qualifies as a "child" for the purpose of determining eligibility for DIC benefits is governed by 38 C.F.R. § 3.400(c)(4) and depends on when the claim was filed. Lynch v. Shulkin, 30 Vet. App. 296 (2018). For claims filed within 1 year after the date entitlement arose (i.e., the date of the veteran's death), whether a claimant is a "child" should be assessed on the date entitlement arose. For claims filed more than 1 year after the date entitlement arose, whether a claimant is a "child" should be assessed on the date the claim was received. In the present case, the Veteran passed away in August 2017. There were no pending claims at the time of his passing. In September 2017, the Appellant submitted VA Form 21-534EZ, seeking entitlement to DIC and accrued benefits. In an October 2017 Rating Decision, the RO granted service connection for the cause of death and established eligibility to Dependents' Educational Assistance for the Appellant. In July 2018, the Appellant submitted a statement in which she requested that her daughter be "placed on my DIC letter." In an August 2018 letter, the RO advised the Appellant that "We granted service connected death benefits, called dependency and indemnity compensation (DIC), effective September 1, 2017. We couldn't approve your claim for accrued benefits. We have denied your claim for death pension benefits." They explained that they could not "consider the Veteran's step-child as a dependent for VA purposes because this dependent was not his/her legal step-child and/or was not a constructive member of your household at the time of the Veteran's death." The Appellant submitted a Notice of Disagreement in August 2018 contesting the denial of adding her daughter to the DIC award. In a December 2018 letter, the RO advised the Appellant that they had partially granted her claim by adding her daughter to the DIC award as a dependent effective August 1, 2017, payable September 1, 2017. She was removed from the DIC award effective September [REDACTED], 2017, the date of her 18th birthday. Later in December 2018, the daughter applied for DIC benefits in her own right as allowed for an unmarried child between the ages of 18 and 23 who is attending school. A Statement of the Case was issued in December 2018, continuing the denial of accrued benefits. The RO explained that the Veteran submitted a Status of Dependency Questionnaire prior to his death, which was received on August 28, 2017, which means if any benefits were payable they would have been paid effective September 1, 2017. Prior to that, the Veteran had submitted a claim to add the daughter to his award on January 23, 2008. The Veteran was notified of the decision not to add the daughter to his award on July 1, 2008 and did not appeal. The Appellant submitted VA Form 9 in January 2019, appealing the denial of entitlement to additional accrued benefits. During the February 2022 Board hearing, the Appellant contended that the Veteran attempted to add the daughter to his award in approximately 2008. The Appellant described how she and the Veteran provided for her daughter in every way, including clothes, toys, games, makeup, utilities, internet, and more. In addition to that support, the Appellant also paid child support to her ex-spouse. She sought additional accrued benefits under the theory that the daughter should have been added to the Veteran's original award in approximately 2008. After careful consideration of the evidence of record, the Board finds that the Appellant has been awarded all available DIC benefits for which she is eligible, including the addition of her daughter to her DIC award. The October 2017 rating decision granted service connection for the Veteran's cause of death and established eligibility to Dependents' Educational Assistance. Accrued benefits were not approved because no amounts were owed to the Veteran at the time of his passing. Subsequently, the daughter was added to the Appellant's entitlement from August 1, 2017 through September [REDACTED], 2017 (the date of the daughter's 18th birthday). The Appellant was also awarded burial benefits, as explained in an October 2017 notification letter from the RO. To the extent that the Appellant has argued that additional accrued benefits are due based upon the inclusion of the daughter to the Veteran's disability compensation award, the Board notes that the Veteran submitted a Status of Dependency Questionnaire which was received on August 28, 2017, prior to his death. If any benefits were payable based upon the addition of the daughter to his award, they would have been paid effective September 1, 2017. Thus, while the daughter may have been an eligible dependent, no money would have been due during this period given the timing of his passing in conjunction with the submission of the Dependency Questionnaire. The Appellant's primary contention during the February 2022 hearing was that the daughter was not previously added as a dependent following the Veteran's submission of VA 21-686c Application Request To Add And/Or Remove Dependents in April 2008. In a July 2008 notification letter, the RO informed the Veteran that the Appellant was added to his award effective July 11, 2007, but that the daughter could not be added because she did not reside in the household at the time. The letter informed the Veteran that he had one year to appeal this decision. No further communication was received from the Veteran until 2014. The July 2008 decision is final, as the Veteran did not appeal or submit new and material evidence within one year of the decision. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The issue of whether there is clear and unmistakable error (CUE) in a prior rating decision is not currently before the Board. The decision herein does not otherwise preclude the Appellant from filing a claim for CUE at the RO. See Jarrell v. Nicholson, 20 Vet. App. 326, 333 (2006) (en banc) (providing that "each wholly distinct and different CUE theory underlying a request for revision is a separate matter and, when attacking a prior RO decision, each must be presented to and adjudicated by the RO in the first instance and, if not, the Board lacks jurisdiction over the merits of the matter."). The Board is sympathetic to the Appellant's claim. However, all accrued benefits available have been awarded to the Appellant. The request for additional accrued benefits is denied. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Jamison, 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.