Citation Nr: 25005997 Decision Date: 05/01/25 Archive Date: 05/01/25 DOCKET NO. 17-15 165 DATE: May 1, 2025 ORDER Entitlement to accrued survivor's (death) pension benefits, for purposes of reimbursement of expenses borne for a claimant's last sickness and burial, is denied. FINDING OF FACT The claim for accrued benefits was not received within one year of the date of death of the Veteran's surviving spouse and there were no extraordinary circumstances presented to warrant equitable tolling of the time to file the accrued benefits claim. CONCLUSION OF LAW The criteria for entitlement to accrued survivor's pension benefits have not been met. 38 U.S.C. §§ 5121, 5121A; 38 C.F.R. § 3.1000. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1946 to February 1947. He passed away in September 1993. In March 2013, the Veteran's surviving spouse, E. J., filed a claim for survivor's pension benefits. A Department of Veterans Affairs (VA) Regional Office (RO) issued a decision in March 2014 granting Mrs. J.'s claim of entitlement to survivor's pension benefits, with additional allowance based on her need for aid and attendance, effective April 1, 2013; it appears, however, that survivor's pension benefits payments were withheld, and that she did not begin receiving payments until April 2014, due to a finding of incompetency. Unfortunately, Mrs. J. passed away in January 2015, and apparently, the previously withheld survivor's pension benefits were not paid prior to her death. The current appellant is the sister of the late Veteran, and sister-in-law to the late Mrs. J., and she is seeking entitlement to accrued survivor's benefits that she believes were due Mrs. J. at the time of her death, for the purposes of reimbursement for expenses that the appellant bore for Mrs. J.'s last sickness and burial. The current matter on appeal before the Board of Veterans' Appeals (Board) arises from a September 2016 decision by a VA agency of original jurisdiction (AOJ) which denied the appellant's claim of entitlement to accrued survivor's pension benefits. In October 2024, the appellant testified at a Board virtual hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. The appellant was previously represented in this appeal by an attorney; however, she has revoked the attorney's representation and has elected to represent herself in this appeal. Entitlement to accrued survivor's pension benefits Accrued benefits are periodic monetary benefits (other than insurance and servicemen's indemnity) to which an individual was entitled at death under existing ratings or decisions and under laws administered by the VA Secretary, or those based on evidence in the file at date of death and due and unpaid, that shall, upon the death of such individual, be paid to the surviving spouse or other appropriate party. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. Accrued benefits are paid as follows: (1) Upon the death of a claimant, 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; (2) Upon the death of a surviving spouse or remarried surviving spouse, to the veteran's children; (3) Upon the death of a child, to the surviving children of the veteran entitled to death pension, compensation, or dependency and indemnity compensation; (4) Upon the death of a child claiming benefits under chapter 18 of this title, to the surviving parents; (5) In all other cases, only so much of the accrued benefit may be paid as may be necessary to reimburse the person who bore the expense of last sickness or burial. 38 C.F.R. § 3.1000. In order to prevail on her accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits, (ii) the prior claimant had a claim pending at the time of death, (iii) the prior claimant would have prevailed on the claim if she had not died; and (iv) the claim for accrued benefits was filed within one year of the prior claimant's death. 38 U.S.C. §§ 5101(a), 5121; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998); 38 C.F.R. § 3.1000. In the instant case, Mrs. J. passed away in January 2015. In January 2015, the AOJ sent a letter the estate of E. J., noting that her VA benefits had been terminated effective the date of her death. The letter also provided notice that if the recipient needed information about VA benefits and eligibility that the recipient should visit VA's website. The appellant filed a request for substitution, which was accepted as a claim for accrued benefits, in April 2016, more than one year after Mrs. J.'s death. In filing her claim, the appellant noted that it took many months to search for the decedent's will, and several more months to locate her attorney and discover her financial relationship with VA, which led to the delay in filing the claim. In her November 2016 notice of disagreement (NOD), the appellant's previously appointed attorney noted additional difficulties for the appellant to obtain information to file her claim, including the distance between her residence and that of E. J. The attorney also argued that the lump sum payment for withheld benefits was unnecessarily delayed and should have been paid prior to Mrs. J.'s death, and thus, that payment should be approved now. In a statement accompanying the February 2017 substantive appeal, on VA Form 9, in addition to repeating arguments in the November 2016 NOD, the attorney argued that VA regulations provide for a delayed filing of a claim for accrued benefits for a person deemed incompetent, as was the case with E. J. The attorney also pointed out that the application form for accrued benefits, 21P-601, provides that a claim for lump sum accrued benefits that were withheld from a competent veteran during hospital treatment, institutional, or domiciliary care must be filed within five years form the veteran's date of death, and that for a person who is entitled to a lump sum accrued benefit that has been declared incompetent at the time of the Veteran's death, the five year period began from the date of termination or removal of the finding of incompetency. The attorney argued that the above rule contemplates a spouse who immediately begins to receive benefits when a veteran dies, and where E. J. did not file her claim for pension until 20 years after the Veteran's death, and was found incompetent by VA, it would be in the spirit of the above rule to treat the lump sum benefits that were due to Mrs. J. with the same exception to the one year filing rule. Finally, during her September 2024 Board hearing, the appellant argued that she received ineffective assistance of counsel from her previously appointed attorney, and that this was the reason that the claim for accrued benefits was not timely filed. She contended that the attorney readily admitted that the delay was his fault and that since so much time had passed away, she had been unable to relocate records pertaining to the claim. She testified that while she did not have additional evidence, she indeed paid for E. J.'s final medical expenses. Addressing each of the arguments as to why the appellant's claim was not timely filed or why the untimely claim should be accepted, beginning with the last, while it is unfortunate that the appellant believes her previously appointed attorney failed to properly assist her with this claim, ineffective representation does not serve as a basis upon which to grant the benefit sought. A VA claimant has only a right to retain counsel, but not to effective assistance of counsel; rather for claimants seeking federal benefits, the general rule stands that a retained counsel's error is imputed to the client. Pitts v. Shinseki, 700 F.3d 1279, 1284 (Fed. Cir. 2012). Ineffective representation does not create a legal right to benefits which are precluded by law. Shields v. Brown, 8 Vet. App. 346, 351 (1995) (holding that inaccurate advice does not create any legal right to benefits where such benefits are otherwise precluded). Turning to the previously appointed attorney's contentions that an exception to the one-year filing deadline should be applied in the instant case, the Board does not find the attorney's arguments to be persuasive for several reasons, chief among these is the fact that the exception provided for on VA Form 21P-601, is found at 38 C.F.R. § 3.1001, and does not apply to improved pension benefits which are the underlying benefit in this appeal. Cf. 38 C.F.R. § 3.551(b). Further, the regulation which provides for the five-year time limit for filing the accrued benefits claim in such cases where the Veteran's pension benefits are reduced or withheld due to hospital, institutional, or domiciliary treatment provided by VA, applies only to veterans that have benefits reduced/withheld due to such VA treatment, and not to other claimants that have payments withheld for other reasons, including incompetency. Finally, the running of the five-year deadline to file the claim due to incompetency, for which the attorney argued, applies only to an entitled accrued benefits claimant that is found incompetent. In this case, the appellant, as the accrued benefits claimant, has never been declared incompetent. The fact that E. J. was found incompetent at the time of her award of survivor's pension benefits or that she did not file her survivor's pension benefits claim for approximately 20 years after the Veteran's death has no bearing on why the current appellant did not file her claim in a timely manner. As for the other arguments pertaining to the VA's delay in releasing E. J.'s lump sum survivor's pension award, and the appellant's difficulty in obtaining in E. J.'s will and determining her financial relationship with VA, all of these factors are contemplated with the accrued benefits system currently in place, which generally provides for up to one year to file a claim for accrued benefits. The system specifically provides for the paying of accrued VA benefits that were, for whatever reason, not paid to a claimant during their lifetime to a qualifying beneficiary, as described at 38 C.F.R. § 3.1000. In contemplating the appellant's arguments, the Board has considered whether the doctrine of equitable tolling would apply to excuse the appellant's tardiness in filing her accrued benefits application. Equitable tolling applies when a claimant shows (1) an extraordinary circumstance; (2) that the extraordinary circumstance caused an inability to file during the requested tolling period; and (3) that there was diligence during the requested tolling period. Checo v. Shinseki, 748 F.3d 1373 (Fed. Cir. 2014). If shown, the "clock stops" and the requested period is not counted against the time period for filing. Id. The United States Court of Appeals for Veterans Claims (Court) held that "[t]he doctrine of equitable tolling has generally established parameters," and it has generally been "applied only when circumstances precluded a timely filing despite the exercise of due diligence, such as (1) a mental illness rendering one incapable of handling one's own affairs or other extraordinary circumstances beyond one's control, (2) reliance on the incorrect statement of a VA official, or (3) a misfiling at the regional office or the Board." Bove v. Shinseki, 25 Vet. App. 136, 140 (2011) (citing Brandenburg v. Principi, 371 F.3d 1362, 1364 (Fed. Cir. 2004); Barrett v. Principi, 363 F.3d 1316, 1321 (Fed. Cir. 2004); Santana-Venegas v. Principi, 314 F.3d 1293, 1298 (Fed. Cir. 2002); Bailey v. West, 160 F.3d 1360, 1365-68 (Fed. Cir. 1998)); McCreary v. Nicholson, 19 Vet. App. 324, (2005)). Equitable tolling has not been applied "when failure to file was due to general negligence or procrastination." Bove, 25 Vet. App. at 140. Unfortunately, in the present case, the Board finds that equitable tolling may not be applied because the appellant has not shown that she was precluded from timely filing her accrued benefits claim despite the exercise of due diligence. While the appellant has expressed having difficulties in obtaining evidence and information pertaining to E. J.'s VA claim or benefits, or her financial relationship with VA at the time of death, there is no indication that the appellant was mentally incapable, even temporarily, of handling her own affairs. There is, additionally, no indication of other extraordinary circumstance beyond the appellant's control that led to the delayed of her claim. While the Board acknowledges the reported distance between the appellant's place of residence and that of E. J., at the time of her death, and the undoubted difficulty in obtaining specific legal information or evidence following her death, including due to the timely process of administering E. J.'s estate, unfortunately, any ignorance or lack of adequate notice as to the status of E. J.'s VA claim or benefits does not rise to the level of an extraordinary circumstance for the delay in filing the present claim. To the contrary, the evidence shows that the appellant filed a request to be appointed E. J.'s fiduciary that was received in September 2014, thereby illustrating that the appellant had knowledge of E. J.'s VA application and award proximate to the time of her death, and there is no argument as to why the appellant could not have filed the present accrued benefits claim within the one-year period following E. J.'s death, even absent specific knowledge of benefits owed to E. J. Moreover, while the appellant appears to have demonstrated due diligence in pursuing her claim, once filed, she has not shown or argued, at any point, that she relied on an incorrect statement from a VA official, or that VA in any way mishandled her accrued benefits application. There is, additionally, no indication that VA gave incorrect information or otherwise mislead the appellant into acting (or failing to act) to her detriment. Thus, the appellant has not shown that her failure to act was due to any affirmative action by VA, to include any misfiling of her claim. Rather, it appears that the appellant's failure to timely file her accrued benefits claim was due to generally foreseeable life circumstances and the passage of time, which amount to inexcusable delay. Further, as for any possible contention that the appellant may have been uninformed of the one-year period to timely file an accrued benefits claim, such is not a legally sufficient reason to waive the one-year filing requirement. See Morris v. Derwinski, 1 Vet. App. 260, 265 (1991) (citing Fed. Crop Ins. Corp v. Merrill, 332 U.S. 380, 384-85 (1947)). In other words, an individual's lack of knowledge or awareness has been denied as a ground for equitable tolling by the Court (and other Federal Courts). The Board is sympathetic to the appellant's contentions as to the challenges that she undoubtedly endured in obtaining evidence and ascertaining the status of E. J.'s claim for or award of VA benefits at the time of her death; and while the Board also wishes to graciously recognize the late-Veteran's service and commitment to his country, the Board is bound by the applicable law and regulations, and this decision is dictated by the relevant statutes and regulations. Under present circumstances, the Board 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). In summary, based on the available evidence, the provisions of 38 C.F.R. § 3.1000 are dispositive in this matter. As the appellant's claim for accrued benefits was not filed within one year of the date of E. J.'s death, the claim must be denied. B. D. WATSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Wilson, 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.