Citation Nr: 0006838	
Decision Date: 03/14/00    Archive Date: 03/17/00

DOCKET NO.  98-11 004	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs Regional Office in 
Philadelphia, Pennsylvania



THE ISSUE

Entitlement to accrued benefits.  



ATTORNEY FOR THE BOARD

Theresa M. Catino, Counsel



INTRODUCTION

The veteran served on active military duty from October 1944 
to August 1946.  

This appeal arises from a May 1998 decision of the 
Philadelphia, Pennsylvania, regional office (RO).  In that 
determination, the RO denied the appellant's claim of 
entitlement to accrued benefits.  Thereafter, in presenting 
her appeal, the appellant requested a hearing before a member 
of the Board in Washington, D.C.  Such a hearing was 
scheduled for October 1, 1998, but the appellant failed to 
appear.  No timely motion for a new hearing date was 
thereafter received.  38 C.F.R. § 20.702(d) (1998).  


FINDING OF FACT

The veteran did not file a claim for VA benefits during his 
lifetime.  


CONCLUSION OF LAW

An award of accrued benefits is not warranted.  38 U.S.C.A. 
§§ 5107, 5121, 7104 (West 1991 & Supp. 1999); 38 C.F.R. 
§ 3.1000 (1999).  


REASONS AND BASES FOR FINDING AND CONCLUSION

According to the pertinent law and regulation, certain 
periodic monetary benefits (other than insurance and 
servicemen's indemnity) 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 for a period not 
to exceed two years, shall, upon the death of such 
individual, be paid, upon the death of a veteran, to the 
veteran's spouse.  38 U.S.C.A. § 5121(a) (West 1991 & Supp. 
1999); 38 C.F.R. § 3.1000(a) (1999).  

The United States Court of Appeals for the Federal Circuit 
(Federal Circuit) has held that, in order for a surviving 
spouse to be entitled to accrued benefits, the veteran must 
have had a claim pending at the time of his death for such 
benefits or else be entitled to them under an existing rating 
or decision.  Jones v. West, 136 F.3d 1296, 1299 (Fed.Cir. 
1998).  Additionally, the Federal Circuit has explained that 

Section 5101(a) [of title 38 of the 
United States Code] is a clause of 
general applicability and mandates that a 
claim must be filed in order for any type 
of benefit to accrue or be paid.  Section 
5121(a) refers to a particular species of 
benefits-accrued benefits-and governs 
the hierarchy of eligibility for such 
benefits upon the death of the veteran.  
This latter section explains that accrued 
benefits are only those "to which an 
individual was entitled at death under 
existing ratings and decisions, or those 
based on evidence in the file at date of 
death . . . and due and unpaid."  The 
"individual," at least in this case, is 
the veteran himself.  

Id.  In the matter currently on appeal, the certificate of 
death indicates that the veteran died on June [redacted], 1996 
at the age of 69 years from cardio-respiratory failure which 
was caused by coronary artery disease that resulted from chronic 
obstructive pulmonary disease due to diabetes.  One month 
later, his surviving spouse filed a claim for accrued 
benefits.  

A review of the claims folder indicates that, during his 
lifetime, the veteran had not filed any claim for VA 
benefits.  Consequently, at the time of his death, he did not 
have a claim pending for any such benefits and was not 
entitled to them under an existing rating or decision.  This 
factual pattern requires a denial of the appellant's claim 
for accrued benefits.  See Jones v. West, 136 F.3d 1296, 1299 
(Fed.Cir. 1998); Sabonis v. Brown, 6 Vet.App. 426 (1994).  


ORDER

The claim for accrued benefits is denied.  



		
	MARK F. HALSEY
	Member, Board of Veterans' Appeals